Law Commons^™

Building A Home For The Laws Of The World: Part 1: Bates, Cook, And Coffey, Margaret A. Leary

Articles

The following feature is an edited version of "Building a Foreign Law Collection at the University of Michigan Law Library, 1910-1960."© Margaret A. Leary, 2002, which originally appeared at 94 Law Library Journal 395-425 (2002), and appears here with permission of the author. The first part of the article appears here; the conclusion will appear in the next issue of Law Quadrangle Notes.

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

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Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his …

Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

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The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.

One such …

Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel

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Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …

Rights Of Access And The Shape Of The Internet, Michael J. Madison

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This Article reviews recent developments in the law of access to information, that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the different doctrines yield different presumptions regarding the respective rights of information owners and information consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, in the click-through context. It argues that …

Critical Praxis, Spirit Healing And Community Activism: Preserving A Subversive Dialogue On Reparations, Christian Sundquist

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African-American reparations have the potential to deconstruct racial privilege, promote racial reconciliation, and heal the psychic injuries of the African-American community. However, many models of reparations have given up on the promise of reparations in exchange for the slim possibility of short-term progress.

A subversive dialogue on African-American reparations, however, will inevitably critique equal opportunity, individualism, and white innocence and privilege. Embraced by the majority, and internalized by the African-American community, the principles of individualism, equal opportunity, and meritocracy reinforce white innocence and privilege to the extent that future, current and past inequality are cast as the natural and inevitable …

Reasonable Accommodation As Part And Parcel Of The Antidiscrimination Project, Mary Crossley

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Numerous commentators have characterized the ADA's reasonable accommodation mandate - which sometimes requires employers to take affirmative steps that treat an individual with a disability differently from other workers - as a departure from the fundamental precepts of antidiscrimination law. These characterizations, however, fail to appreciate either the insights offered by disability theorists regarding the sources of inequality experienced by people with disabilities or the intrinsic conceptual kinship between the ADA's accommodation requirement and disparate impact liability and hostile environment liability under Title VII. Disability theory scholarship affirms that society's historic disregard for and devaluation of people with disabilities has …

Child Placement Decisions: The Relevance Of Facial Resemblance And Biological Relationships, David J. Herring

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This article discusses two studies of evolution and human behavior addressing child-adult relationships and explores implications for policies and practices surrounding placement of children in foster homes. The first study indicates that men favor children whose facial features resemble their own facial features. This study may justify public child welfare decisionmakers in considering facial resemblance as they attempt to place children in safe foster homes.

The second study indicates that parents are likely to invest more in children who are biologically related to them, thus enhancing their long term well-being. Among other implications, this study may justify public child welfare …

Why Theories Of Law Have Little Or Nothing To Do With Judicial Restraint, Philip E. Soper

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The question I explore here, stated in its broadest form, is this: What is the connection between theory and practice between academic claims about how judges should decide cases and the actual behavior of judges as revealed in the opinions they write? More particularly, do theories about the nature of law have any implications for the question whether a judge should adopt an "activist" or a "restrained" approach to deciding cases? As you might infer from my title, I defend here what I call "the skeptical thesis" in answer to both the general and particular questions. Judges pay little or …