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Vol. 25, No. 3, Summer 2005: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

No abstract provided.

Liability For Direct Advertising Of Drugs To Consumers: An Idea Whose Time Has Not Come, Aaron Twerski

Faculty Scholarship

No abstract provided.

Judicial Deference In A Post-Deregulation World, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Prolegomenon To An Intellectual History Of Administrative Law In The Twentieth Century: The Case Of John Willis And Canadian Administrative Law, Michael Taggart

Osgoode Hall Law Journal

The intellectual legal history-the history of ideas--of modern administrative law has yet to be written. The first part of this article suggests that one way to approach this necessary task is to posit the writings of leading administrative law thinkers in the context of cases, controversies, doctrines, events, and movements throughout the twentieth century. The work of pioneer administrative lawyer John Willis is used to exemplify this type of contextualized intellectual legal history. The second part of this article seeks to gauge Willis's influence on the development of Canadian administrative law.

The "Proof" Of Foreign Normative Facts Which Influence Domestic Rules, Frederic Bachand

Osgoode Hall Law Journal

This article concerns the ascertainment by judges of normative facts that emanate from within foreign legal orders and must be taken into consideration in the interpretation of domestic rules. The author proposes an analytical approach which is based on three ideas. First, judges must remain in control of the process aimed at ascertaining such facts. Because the interpretation of domestic rules is at stake, they cannot remain passive and rule solely on the basis of the information adduced by the parties, as they normally do while ascertaining the contents of foreign rules under a classic conflict of laws scenario. Second, …

The Gendered Dimensions Of Social Insurance For The "Non-Poor" In Canada, Stephanie Ben-Ishai

Osgoode Hall Law Journal

This article emerges from an exploration of the meanings of consumer bankruptcy in the current context of Canadian society, as well as the role consumer bankruptcy plays in shaping this context. Examining consumer bankruptcy through the lens of gender relations, the claim is made that Canadian consumer bankruptcy legislation, policies, practices, and accompanying discourses are implicated in the causation and perpetuation of the conditions of marginalization and subordination endured by women who experience long-term poverty. These women are affected not only in terms of access to the bankruptcy system, but also by the broader implications of the delivery of consumer …

Europe's Darker Legacies; Notes On Mirror Reflections, The Constitution As Fetish, And Other Such Linkages Between The Past And The Future Darker Legacies Of Law In Europe; The Shadow Of National Socialism And Fascism Over Europe And Its Legal Traditions Edited, By Christian Joerges And Navraj Singh Ghaleigh (Eds); European Constitutionalism Beyond The State, By J. H. H. Weiler And Marlene Wind (Eds), Peer Zumbansen

Osgoode Hall Law Journal

No abstract provided.

Domestic Violence And The Danger Of Joint Custody Presumptions, Judith G. Greenberg

Northern Illinois University Law Review

This article points out that the current trend towards joint custody as the preference or presumption in divorces can create some unwanted side-effects. Specifically, joint custody is dangerous for victims of spousal abuse because it allows, and sometimes even facilitates, the continuation of patterns of abuse. Although many jurisdictions that apply a joint custody presumption attempt to protect victims of domestic violence, neither of the two usual approaches is successful in protecting the victims and their children. As a result, the author makes two recommendations. First, statutes should never create a presumption in favor of joint custody. Second, courts should …

Protecting The Parent-Child Relationship: The Need For Illinois Courts To Extend Standing To Non-Biological Parents In Regard To Visitation Proceedings, Desiree Sierens

Northern Illinois University Law Review

Each year, children in Illinois are denied the opportunity to visit a "parent" because the children's families do not fit into traditionally defined family units. Under Illinois law, one "parent" in these non-traditional families lacks standing to petition for custody and visitation. While Illinois courts have a tradition of extending rights to common law parents, current courts have declined to follow previous rulings when asked to extend standing to the same-sex partner of the biological parent, even in cases where the couple, together, agreed to have the child. This comment will argue that maintaining relationships between a non-biological parent and …

The American Law Institute Principles Of Family Dissolution, The Approximation Rule And Shared-Parenting, Marygold S. Melli

Northern Illinois University Law Review

This article discusses the ALl Principles of Family Dissolution which proposes a default rule to determine child custody when parents cannot agree. That rule, known as the Approximation Rule, requires the court to allocate child custody so that the amount of time that the child spends with each parent approximates the proportion of time each parent spent in child care during the marriage. This article explains the background for the choice of the rule and faults the ALl for not explicitly recognizing that the rule may in effect be a proposal for shared parenting.

War On The International Criminal Court, Mark D. Kielsgard

City University of New York Law Review

No abstract provided.

Introducing New York City Law Review's Public-Interest Practice Section

City University of New York Law Review

No abstract provided.

Will There Be A Freeze On Cold Hits? Safeguarding The Constitutionality Of Dna Collection Statutes, Ellen Ruth Magid

City University of New York Law Review

No abstract provided.

An Advocate's Toolkit: Using Criminal "Theft Of Service" Laws To Enforce Workers' Right To Be Paid, Rita J. Verga

City University of New York Law Review

No abstract provided.

For Whom The School Bell Tolls But Not The Statute Of Limitations: Minors And The Individuals With Disabilities Education Act, Lynn M. Daggett, Perry A. Zirkel, Leeann L. Gurysh

University of Michigan Journal of Law Reform

This Article explores whether claims under the federal special education statute should be tolled on account of minority. Adult disabled students typically assert this type of tolling claim when alleging statutory violations dating back ten or more years, when they were minors. However this tolling claim is decided, there may be undesired results. First, even if the student has a very strong case, the merits are never reached if the court dismisses the hearing request as untimely. Second, if the hearing request is timely and the case proceeds to the merits, the student must remain in her current educational placement, …

Not Enough Of A Minority?: Arab Americans And The Language Assistance Provisions (Section 203) Of The Voting Rights Act, Brenda Fathy Abdelall

University of Michigan Journal of Law Reform

With the Voting Rights Act set to expire in 2007, debate has ensued regarding the protections it provides for minority groups. Section 203 of the Act protects language minorities, but under these protections, only four minority groups are afforded bilingual access to voting materials. This Note argues that the Act is imperative to the protection of minority voters, especially those belonging to a language minority group. This Note further argues that not only should the Voting Rights Act be renewed, but § 203 should be revised to include Arab Americans. The Note focuses on the Arab American community because it …

Fair Representation On Juries In The Eastern District Of Michigan: Analyzing Past Efforts And Recommending Future Action, Andrew J. Lievense

University of Michigan Journal of Law Reform

This Note builds on past recommendations to reform jury selection systems to make juries more representative of the community. Juries representing a fair cross section of the community are both a statutory and constitutional requirement, as well as a policy goal. How a judicial district designs and implements its jury selection system is important to meeting this requirement.

Part I of this Note analyzes the history and development of the representativeness interest on juries, explains how the United States District Court for the Eastern District of Michigan attempted to meet this interest in the 1980s and 1990s, and reports and …

Bayes' Law, Sequential Uncertainties, And Evidence Of Causation In Toxic Tort Cases, Neal C. Stout, Peter A. Valberg

University of Michigan Journal of Law Reform

Judges are the gatekeepers of evidence. Arguably, the most difficult duty for a judicial gatekeeper is to screen the reliability of expert opinions in scientific fields such as medicine that are beyond the ken of most judges. Yet, judges have a duty to scrutinize such expert opinion evidence to determine its reliability and admissibility. In toxic tort cases, the issue of causation-whether the alleged exposures actually caused the plaintiffs injury-is nearly always the central dispute, and determining admissibility of expert causation opinion is a daunting challenge for most judges. We present a comprehensive review of the courts' struggles with the …

Front Matter

City University of New York Law Review

No abstract provided.

Strict Scrutiny For Denominational Preferences: Larson In Retrospect, Jeremy Patrick-Justice

City University of New York Law Review

No abstract provided.

Shedding Your Soul At The Schoolhouse Gate: The Chilling Of Student Artistic Speech In The Post-Columbine Era, Anna Boksenbaum

City University of New York Law Review

No abstract provided.

Ranking Law Schools: A Market Test?, Cass R. Sunstein

Coase-Sandor Institute for Law & Economics Research Paper Series

Instead of ranking law schools through statistical aggregations of expert judgments, or by combining a list of heterogeneous factors, it would be possible to rely on a market test, simply by examining student choices. This tournament-type approach would have the large advantage of relying on the widely dispersed information that students actually have; it would also reduce reliance on factors that can be manipulated (and whose manipulation does no good other than to increase rankings). On the other hand, a market test has several problems as a measure of law school quality, partly because cognitive biases and social influences may …

The Superiority Of An Ideal Consumption Tax Over An Ideal Income Tax, David A. Weisbach, Joseph Bankman

Coase-Sandor Institute for Law & Economics Research Paper Series

This paper considers the arguments regarding the choice between an ideal income tax and an ideal consumption tax, focusing on an argument made by Atkinson and Stiglitz regarding neutral taxation of commodities. The argument shows that a properly designed consumption tax is Pareto superior to an income tax: it is more efficient and at least as good at redistribution. The major exception to the Atkinson and Stiglitz result is if individuals with equal wages have different propensities to save. In that event, a consumption tax may no longer be Pareto superior to an income tax. A consumption tax will continue, …

Boundedly Rational Borrowing: A Consumer's Guide, Cass R. Sunstein

Coase-Sandor Institute for Law & Economics Research Paper Series

Excessive borrowing, no less than insufficient savings, might be a product of bounded rationality. Identifiable psychological mechanisms are likely to contribute to excessive borrowing; these include myopia, procrastination, optimism bias, "miswanting," and what might be called cumulative cost neglect. Suppose that excessive borrowing is a significant problem for some or many; if so, how might the law respond? The first option involves weak paternalism , through debiasing and other strategies that leave people free to choose as they wish. Another option is strong paternalism, which forecloses choice. Because of private heterogeneity and the risk of government error, regulators should have …

Adr Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, Julia Ann Gold

Journal of Dispute Resolution

I arrived for my second Nepali language class on time, but the teacher kept chatting about inconsequential things. I was paying by the hour, and we had already spent 25 minutes talking about nothing! A week later, I received an invitation to an art exhibit. The location was "Royal Museum," so that is where I went, only to find an empty building and no people. What had I missed? In my first meeting with the Dean of the Law Campus, we talked about trekking, the upcoming religious holidays, his visit to Seattle two years ago, relatives in the United States, …

Last Chance Agreements: How Many Chances Is An Employee Entitled To, Kathleen Birkhofer

Journal of Dispute Resolution

Over the years, a large number of cases involving labor issues have gone to arbitration. Of these labor cases, a distinct sub-category are those governed by the Railway Labor Act (RLA). In labor cases, including those governed by the RLA, the Supreme Court has repeatedly reaffirmed the strong federal policy in favor of arbitration. Furthermore, courts have consistently held that great deference must be shown toward the arbitrator when reviewing an arbitration award. However, there are still issues that arise as to just how much deference should be afforded to an arbitrator's decision and when a court can overturn an …

Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas

Journal of Dispute Resolution

Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …

Vacatur Of Labor Arbitration Awards: Watering Down The Supreme Court's Drawn From The Essence Precedent May Sound The Death Knell For Labor Arbitration , Jonathan R. Waldron

Journal of Dispute Resolution

In CITGO Asphalt Ref. Co. v. Paper, Allied-Indus., Chem., & Energy Workers Int'l Union Local No. 2-991, the Court of Appeals for the Third Circuit, while merely giving lip service to Supreme Court precedent, further contributes to the situation where many circuit courts insidiously refuse to follow the Supreme Court's prohibition against reaching the merits of a labor arbitrator's award. It would appear that only through renewed Supreme Court vigilance and clarity can this trend be impeded.

Arbitrability Of Arbitrability, The, Michelle St. Germain

Journal of Dispute Resolution

If you can read the following only once and understand it, consider yourself part of a very small minority: "It is the dilemma of the box within a box or, in the case of arbitration, the authority as to the decision as to the authority to make the decision." That is "arbitrability" in a nutshell; not a simple concept. Indeed, at oral argument in First Options of Chicago, Inc. v. Kaplan, the confusion occurred to a U.S. Supreme Court Justice.