Law Commons^™

Vol. 54, No. 2, September 16, 2003, University Of Michigan Law School

Res Gestae

•Bigger and Better: Class of 2006 Profile •Greetings From the Editor's Desk •Remembering 9/11: Then and Now •Speaker Offers New Insights on Middle East •y Life as a 1L: Beverly Hills 48109 •Getting Involved: Student Groups Welcome 1Ls at Student Organization Fair •Judge Brudo Simma Delivers Special Lecture •Maybe It's Really Different This Year •Anti-Discrimination Policy Inhibits Student Choice •Michiganders Unite: State Bar Has Much to Offer •Crossword

Shaping Public Programs Through Medicare, Medicaid, And Schip Waivers: The Fundamentals, Cynthia Shirk

National Health Policy Forum

This background paper examines the use of research, demonstration, and program waiver authorities to test new approaches to the delivery of and payment for health care services in federally financed health coverage programs such as Medicare, Medicaid, and the State Children’s Health Insurance Program. The paper also looks at the mechanics of waivers as well as their history and political context in shaping public programs. In addition, it explores the ways the changing state-federal relationship and the ever-growing demand for state flexibility have driven waiver policy.

Vol. 25, No. 03 (September 15, 2003)

Indiana Law Annotated

No abstract provided.

The Weekly September 15, 2003, North Carolina Central School Of Law

NCCU Law School Weekly

No abstract provided.

Department Of Justice Guidelines: Balancing "Discretionary Justice", Ellen S. Podgor

ExpressO

No abstract provided.

Conference Registration

Freedman Institute for the Study of Legal Ethics Conferences

No abstract provided.

Conference Program

Freedman Institute for the Study of Legal Ethics Conferences

No abstract provided.

Expected Value Arbitration, Joshua P. Davis

ExpressO

This Article proposes a new form of dispute resolution, Expected Value Arbitration or “EVA.” It would award a plaintiff the expected value of the outcome at trial or, in other words, the plaintiff would receive the amount she would recover on average if numerous courts were to decide her claim. EVA’s novel use of expected value gives it several virtues that distinguish it from trial, traditional binding arbitration, and other academic proposals for imposed compromise: first, EVA allows parties to insist on their legal rights without braving the risks of winner-take-all adjudication; second, it minimizes errors in adjudication; and, third, …

The American "Covenant Marriage" In The Conflict Of Laws, Peter Hay

ExpressO

Three states have adopted covenant marriage legislation, with similar bills pending in others. They seek a greater commitment of the spouses-to-be and mkake divorce more difficult. At the same time, other forms of partnerships are proposed in other states. To what extent can covenant-marriage legislate assure that it will be given in other states (interstate) or internationally? The suggested answer is: the divorcing U.S. forum applies its own law (covenant-law or non-covenant law), some foreign systems will apply the parties' home law (thus recognizing restrictions when a U.S. sister state would not).

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

Tax Reality Bites, Jeffrey H. Kahn

Scholarly Publications

No abstract provided.

Brief Of Ohio School Boards Ass'n Et Al. As Amici Curiae In Support Of Petitioners, Derolph V. State, No. 03-245 (U.S. Filed 2003), Tracy A. Thomas, Stephen W. Funk

Con Law Center Amicus Briefs

This case presents the issue of the Ohio Supreme Court’s violation of the Due Process Clause of the Fourteenth Amendment by denying an adequate remedy to successful plaintiffs in a school funding case. In five decisions in the case of DeRolph v. Ohio from 1997 to the present, the Ohio Supreme Court has declared that Ohio’s school funding system is unconstitutional and ordered the state legislature to fix the funding system pursuant to an affirmative, structural injunction.2 To date, however, the state has continually refused to comply with the Ohio court’s injunction by making the required changes in the school …

Liability Rules For Constitutional Rights: The Case Of Mass Detentions, Eugene Kontorovich

ExpressO

Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.

This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, …

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

New Jersey’S Model Response To Predatory Lending, David J. Reiss

ExpressO

As widespread media coverage has documented, predatory home lending practices have become rampant throughout the country and, notably, among low-and moderate-income and African American communities in New Jersey. Our article analyzes this emerging problem as a sometimes devastating side effect of the rapid increase in American home ownership, an otherwise almost completely desirable phenomenon.

Because predatory lending has been so difficult to define, states have struggled to regulate it. New Jersey, building on the work of a few other leading states, has drafted what many consider to be the new standard for predatory lending legislation, the Home Ownership Security Act. …

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …

In The Name Of National Security Or Insecurity?: The Potential Indefinite Detention Of Non-Citizen Certified Terrorists In The United States And The United Kingdom In The Aftermath Of September 11, 2001, Dana L. Keith

ExpressO

No abstract provided.

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang

Duke Law & Technology Review

Inventorship is a required component of patents issued in the United States, and the penalty for filing a patent with incorrect inventorship is harsh: possible invalidation of the entire patent. This iBrief explores the background on inventorship in the United States patent system, and various remedies such as 35 U.S.C. §116, 35 U.S.C. §256, and interference proceedings in correcting errors in inventorship. This iBrief will then discuss the usefulness of these various remedies to a putative inventor who was left off the inventorship of a patent.

Beyond Dilution: Toward A Coherent Theory Of The Anti Free Rider Impulse In American Trademark Law, David J. Franklyn

ExpressO

This article argues for a fundamental shift in the way famous trademarks are protected under American trademark law. Currently, famous marks are protected by dilution law, which purports to prevent a particular kind of harm (i.e., the gradual whittling away of the commercial magnetism of a famous mark). The article argues that this is the wrong focus of famous mark protection, because dilution is an illusory concept; it either does not exist, or it is so difficult to prove, that it is an ineffective and misleading doctrinal tool. The article contends that American trademark law should move from the harm-based …

Wroblewski V. Wagner, 02-Ap-34 (Blkft. Tr. Ct. App., Sep. 8, 2003), Blackfeet Appellate Court

Court Decisions

• In the Blackfeet Tribal Court of Appeals, the Court considered whether a Blackfeet Housing decision was proper in awarding a unit to the respondent. When the lease purchase agreement was signed, both Wrobleski, who is a non-member descendant of the Blackfeet Tribe, and Wagner, a Blackfeet tribal member, signed the lease, and they share a child who is an enrolled member of the Blackfeet Tribe. The couple subsequently split with Wrobleski filing an emergency petition and the court awarding the home to her and her child. The Lower court granted joint custody but stated that the Blackfeet Housing Board must …

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Vol. 25, No. 02 (September 8, 2003)

Indiana Law Annotated

No abstract provided.

Appeal No. 0727: Eric Petroleum Corp. V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2003-65

Brief Of Amici Curiae The Becket Fund For Religious Liberty, The Catholic League For Religious And Civil Rights, And Historians And Legal Scholars In Support Of Respondent, Richard W. Garnett, Kevin J. Hasson, Roman P. Storzer, Anthony R. Picarello Jr., Gerard V. Bradley

Court Briefs

No. 02-1315
Gary Locke v. Joshua Davey

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of the Argument

The Washington State law at issue in this case disqualifies a student from an otherwise available government benefit, only because the student would use the benefit for a religious purpose. That is the core constitutional offense identified by the court below, and this Court may affirm on that basis alone.

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …

A Family Affair: Sharing Information About Genetic Diseases, Lyria K. Bennett Moses

ExpressO

Genetic test results provide information relevant to the future health of the person tested as well as parents, siblings, children and more distant relatives. This Article examines the legal consequences that might follow a decision to share or withhold genetic information. It argues that the obstacles to liability might not be justified in situations where either disclosure of genetic information or silence will cause significant harm.

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

ExpressO

Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

ExpressO

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War.  The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael L. Selmi

ExpressO

This article analyzes a series of class action employment discrimination cases that have arisen in the last decade to challenge persistent sex discrimination against women. These cases have targetted the practices in the securities and grocery industries, and include a series of sexual harassment class action claims. These cases pose a challenge to the consensual view that sex discrimination is now perpetuated through subtle practices, and instead highlight the continuing ways in which male norms are preserved in the workplace through intentional acts of hostility and exclusion.

Interpersonal Dynamics, Joshua D. Rosenberg

ExpressO

This article explains the importance of relationship skills to attorneys. It explains why, despite the significance of these skills to attorneys, law schools and law firms ignore them. It then explains how these skills can be taught in law school, and how a relation al perspective can become not simply an important part of the law, but also an important part of the lives of lawyers. It develops and supports an ap proach that develops the cognitive, behavioral, perceptual and emotional skills and awareness essential to both accurate communication and productive and meaningful relationships. This approach is quite different from …