Law Commons^™

A Kinder, Gentler System Or Capitulations? International Law, Structural Adjustment Policies, And The Standard Of Liberal, Globalized Civilization, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

¡Viva La Evolución!: Recognizing Unconscious Motive In Title Vii, Ann C. Mcginley

Scholarly Works

This article analyzes the different proof mechanisms developed under Title VII discriminatory treatment doctrine, demonstrating their ability to identify unconscious, as well as conscious, discriminatory behavior. It demonstrates that soon after its enactment Title VII began to evolve, expanding its reach to unconscious discrimination. Although in many instances courts were unaware of this expansion, courts appear to have followed their intuition to further the broad remedial and preventive purposes of the statute. In response to the evolution and to the courts' failure to articulate a justification for their decisions, a counter-evolution is currently occurring, with many courts attempting rigidly to …

The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel

Scholarly Works

The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …

Equal Protection Challenges To The Use Of Racial Classifications To Promote Integrated Public Elementary And Secondary Student Enrollments, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Constitutionality Of Racial Classifications In Public School Admissions, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

From International Treaties To Internet Norms: The Evolution Of International Trademark Disputes In The Internet Age, Ajay K. Mehrotra, Marcelo Halpern

Articles by Maurer Faculty

In today's dynamic, digital economy, there is a global clash between geographically bounded intellectual property rights and the limitless reach of the Internet. Traditionally, discrepancies in international intellectual property rights, such as trademark disputes, have been resolved through time-consuming, multilateral state-to-state treaty negotiations that have global harmonization as the primary goal.

With the explosion of e-commerce and the birth of a New Economy, however, such a traditional process is no longer economically viable. Instead, a new approach towards international intellectual property is fast emerging - one that rests not on treaties between multiple states, but on the private contracting of …

Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen

Articles by Maurer Faculty

This article, published in Law & Contemporary Problems, was presented at a Duke Law School conference, The Constitution Under Clinton: A Critical Assessment. It examines a recurring, unsettled issue of executive power: how the President best fulfills his constitutional responsibilities when confronted with the enforcement of a statute that he believes is unconstitutional. What should the President do if he believes enforcing a statutory provision would violate the Constitution? Should, for example, a President comply with a congressional command that he believes would violate the constitutional rights of individuals or compromise presidential power? The article examines the two prevailing approaches …

"The Best Thing For The Country", Herbert J. Miller Jr.

UC Law Journal

No abstract provided.

Monstrous Offenders And The Search For Solidarity Through Modern Punishment, Joseph E. Kennedy

UC Law Journal

In this article, Professor Kennedy examines the tremendous increase in the severity of punishment in America in recent decades. He posits that criminal punishment has come to serve as a new civic religion of sorts for a society worried about its ability to cohere. The depth of our anxieties about our social solidarity, Kennedy argues, expresses itself in our monstrous conceptions of crime and in the corresponding severity of our punishment. His conclusion is that crime has come to serve as a rallying cry for a divided and insecure society, and that individuals and groups try to use punishment and …

Taking Trips To The Eleventh Amendment: The Aftermath Of The College Savings Cases, John O'Connor

UC Law Journal

This note examines the conflict between Eleventh Amendmentbased state sovereign immunity and Fourteenth Amendment-based congressional power to abrogate that immunity. In 1999, the Supreme Court handed down two opinions that dramatically redefined the relationship between federal government and the states. In the companion intellectual property cases, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that Congress had improperly attempted to abrogate the states' sovereign immunity, overruling aspects of the Trademark Remedy Act and Patent Remedy Acts respectively. As a result of these cases, …

The Keepers Of The Gates: Intellectual Property, Antitrust, And The Regulatory Implications Of Systems Technology, Dana R. Wagner

UC Law Journal

This Article identifies and analyzes an emerging trend in the legal regulation of high-technology industries. The Article begins by distinguishing between conventional forms of computer technology and "systems technology," the architectural technology that defines computing environments and determines the products with which they can interface. It argues that a doctrinal shift is occurring in the laws that regulate the competitive behavior of systems-technology innovators: a shift away from exclusionary entitlements and towards a system of liability-rule protections. As evidence of this shift, the Article examines recent legal disputes involving microprocessor technology and computer bus design.

The Article then argues that …

Beyond Relevant Conduct--The Federal Sentencing Commission's (In)Discretion: How U.S.S.G. Section 2g2.2(B)(4) Illustrates The Future Of The Sentencing Guidelines, Rebecca Poate

UC Law Journal

This Note explores the aftermath of the creation of the Federal Sentencing Guidelines and the choice to include relevant conduct as a sentencing criteria. It argues that peculiar, unintended consequences have largely been the result of this attempted reform. The inclusion of relevant conduct, despite its debatable connection to congressional intent, combined with a statute left over from pre- Guideline sentencing that mandates rampant judicial discretion at sentencing, has allowed the disparity-producing sentencing of old to creep back into the post-Guideline world. This time, however, the wide-ranging discretion to consider virtually any conduct at sentencing is comfortably hidden behind the …

The Overlooked Concern With The Uniform Computer Information Transactions Act, Katy Hull

UC Law Journal

This Note examines the concerns surrounding the Uniform Computer Information Transactions Act ("UCITA"), a uniform commercial code for software licenses and other computer information transactions proposed by the National Conference of Commissioners on Uniform State Laws. Since case law addressing software licensing is currently inconsistent, some scholars believe that this uniform, nation-wide set of laws would provide for greater stability and predictability. Still, some critics of the UCITA worry that it fails to address consumer protection concerns. Few criticisms, however, have focussed on the UCITA's potential impact on the software licensing industry. Due to the growing importance of that industry …

Managerial Litigants? The Overlooked Problem Of Party Autonomy In Dispute Resolution, Sarah Rudolph Cole

UC Law Journal

In recent years we have witnessed a dramatic upsurge in litigant use of alternative dispute resolution (ADR) mechanisms, both inside and outside the traditional litigation system. This explosive growth in ADR utilization presents courts with a fundamental problem. The cornerstone of ADR processes, and in particular, ADR process design, is party consent. In general, parties are free (on a shared consent basis) to shape the ADR processes they employ to suit their perceived needs. When disputants request that courts use dispute resolution tools, courts have, for the most part, adopted this precept, willingly accepting efforts by "managerial litigants" to shape …

Government Of The Good, Abner S. Greene

Vanderbilt Law Review

Government "speaks" both directly through its own pronouncements and indirectly through funding private speech. Many scholars of both political theory and constitutional law have argued that government should not use its persuasive powers to promote contested notions of the good life. Whether the issue is providing information about childbirth without also providing information about abortion or insisting on adherence to decency standards when awarding cultural grants, scholars generally have maintained that government should avoid taking sides.

In this Article, Professor Greene supports the contrary position, advocating a vigorous role for government speech even in areas of great social contest. Government …

Indeterminate Claims: New Challenges To Self-Determination Doctrine In Yugoslavia, Timothy W. Waters

Articles by Maurer Faculty

Serbia has two autonomous provinces, with nearly identical constitutional and political claims: heavily Albanian Kosovo and ethnically diverse but Serb-majority Vojvodina. One is headed towards some form of internationally recognized independence; the other almost certainly is not, even though calls for its autonomy have been mounting. What makes the difference?

This article examines what the reasons for these different outcomes show about the changing content of self-determination in an environment of persistent ethnic claims. The defining characteristic of self-determination today is its indeterminacy, which allows policymakers to pursue a broader range of policies than was possible in the era of …

Substance And Procedure In Capital Cases: Why Federal Habeas Courts Should Review The Merits Of Every Death Sentence, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Reconciling The Juridical Links Doctrine With The Federal Rules Of Civil Procedure And Article Iii, William D. Henderson

Articles by Maurer Faculty

Over the past three decades, the juridical link and concerted action exceptions have evolved from dicta in the Ninth Circuit's decision in La Mar to an amorphous and undertheorized body of case law that has dangerously merged procedural and jurisdictional issues. Drawing on the principles of class action jurisprudence set forth by the Supreme Court in Amchem and Ortiz, lower courts should consider the issues of class certification and Rule 20(a) joinder before turning to the issue of standing under Article III. Under this approach, courts would not be able to reconcile much of the juridical links case law with …

Globalization And The U.S. Market In Legal Services: Shifting Identities, Carole Silver

Articles by Maurer Faculty

The article examines the international activities of various segments of the U.S. legal profession and analyzes the impact of these activities on the domestic market in legal services. It takes an empirical approach to the question of how international activities have shaped the profession by chronicling the foreign office activity of more than 70 of the largest U.S. firms. The data presented facilitates new insight into the ways in which U.S. lawyers participate in the international market in legal services. The article reveals that internationalization has resulted in the homogenization of the largest U.S. firms, as they increasingly compete for …

Personal Law And Human Rights In India And Israel, Jayanth K. Krishnan, Marc Galanter

Articles by Maurer Faculty

No abstract provided.

On Courts Herding Cats: Contending With The "Written Description" Requirement (And Other Unruly Patent Disclosure Doctrines), Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Inter Partes Patent Reexamination, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

The Importance Of Being Comparative: M. Dale Palmer Professorship Inaugural Lecture, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

Delgamuukw And The Protection Of Aboriginal Land Interests, Gordon Christie

All Faculty Publications

To determine the extent to which Aboriginal title-holders enjoy control over Aboriginal title lands, it is necessary to explore fiduciary doctrine, for the application of this doctrine to the question of legislative infringement determines the limits within which Aboriginal title-holders can expect to see their interests respected. In Delgamuukw the Supreme Court of Canada adopted and applied an understanding of the Crown-Aboriginal fiduciary relationship it developed in Gladstone. In so doing the Supreme Court set out the power of Canadian governments to control the uses to which Aboriginal title lands can be put. Ironically, since Aboriginal title is characterized by …

History And The Eleventh Amendment, John V. Orth

Faculty Publications

No abstract provided.

Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman

Scholarly Works

No abstract provided.

Preface To The Gateway Thread, Deborah W. Post

Scholarly Works

No abstract provided.

Recent Supreme Court Employment Law Developments, Douglas D. Scherer, Olati Johnson

Scholarly Works

No abstract provided.

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

Scholarly Works

Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years …

Exploring The Law Of Law Teaching: A Feminist Process, Kathryn M. Stanchi

Scholarly Works

No abstract provided.