Law Commons^™

A Primer On The Law And Ethics Of Treatment, Research, And Public Policy In The Context Of Severe Traumatic Brain Injury, Stacey A. Tovino

Scholarly Works

From the 1976 case of Karen Ann Quinlan to the March, 20, 2004, statement of Pope John Paul II, physicians, lawyers, and theologians have struggled with the legal and ethical implications of treatment and public policy decisions in the context of devastating brain injury. Recent medical literature proposing an ethical framework for interventional cognitive neuroscience involving patients in states of minimal consciousness raises additional legal and ethical issues in the context of clinical research.

Using the Mathew Kosbob case as a point of departure, this article discusses the legal and ethical issues raised by treatment and research, as well as …

Book Review: "Jewish Biomedical Law: Legal And Extra-Legal Dimensions", Stacey A. Tovino

Scholarly Works

Three extra-legal themes—the influence of morality upon Jewish law (halakhah), the growing awareness and implementation of the value of patient autonomy, and the role of scientific progress in the shaping of halakhic decisions—distinguish Daniel Sinclair’s work from other sin the field of Jewish biomedical law. Students and lawyers new to Jewish biomedical law may struggle with Sinclair’s decision to reserve until the final chapter his theories regarding how biomedical halakhah works. However, advanced students and scholars in the field will appreciate the opportunity to understand Sinclair’s three extra-legal themes in context and his decision to root his final …

Virtual Property, Joshua Fairfield

Articles by Maurer Faculty

This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - that is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act …

Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus

Scholarly Works

Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating …

Legal Reform: The Role Of Public Institutions And Legal Culture, Ruben J. Garcia

Scholarly Works

In this symposium held at California Western School of Law, Professor Garcia comments on the presentations of other participants and provides his own reflections about the role that legal cultures and legal institutions play in emerging democracies and in our very own.

Charity, Publicity, And The Donation Registry, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Many Americans donate little or nothing to charity, but according to Robert Cooter and Brian Broughman, our social environment is the cause, not human nature. They propose a small policy change to increase transparency and elicit generosity inspired by experimental evidence about the nature of giving.

Multicultural Lawyering: Teaching Psychology To Develop Cultural Self-Awareness, Carwina Weng

Articles by Maurer Faculty

Much of the current literature in multicultural lawyering focuses on learning substantive information about clients who are culturally different from the lawyer, such as how the client's culture perceives eye contact or reacts to science-based world views. This article notes that such a focus sidesteps the human reality that every person reacts to people who are different from him- or herself unconsciously in ways that may be culturally insensitive and discriminatory and that this human reaction occurs despite awareness of the general values, attitudes, and beliefs of the client's culture. It therefore suggests that multicultural lawyering training should begin with …

Foreward: Competing And Complementary Rule Systems: Civil Procedure And Adr, Jean R. Sternlight

Scholarly Works

This is a foreword to articles submitted as part of the Association of American Law School’s Symposium during at the January 2004 AALS’s Annual Meeting in Atlanta, Georgia entitled "Competing or Complementary Rule Systems? Adjudication, Arbitration and the Procedural World of the Future." The session brought together panelists whose expertises ranged across the academy. The legal academics were joined by the federal district judge now chairing the committee charged by the Judicial Conference of the United States to draft federal civil procedural rules. The stimulating session reflected on the relationship between litigation and non-litigation approaches to dispute resolution. Participants explored …

Linking The Rule Of Law And Trade Liberalization In Jamaica, Rachel J. Anderson

Scholarly Works

Jamaica is one of several smaller countries that hope to improve their position in the global market, raise living standards, and strengthen democracy through trade liberalization. Adapting David Dollar's cycles of good governance, this article argues that sustainable trade liberalization, rule of law, and democracy are linked and that sustainable success in one area requires contemporaneous progress in the other two. It concludes that improving the rule of law in Jamaica is necessary for sustainable trade liberalization.

Justice Scalia's Footprints On The Public Lands, Bret C. Birdsong

Scholarly Works

This article explores Justice Scalia's views of judicial review of administrative action, as revealed in his writings on public land law, as both a scholar and a Supreme Court justice. It examines and explains why Professor Scalia favored judicial review of public land administration while Justice Scalia seems to abhor it. In a sweeping law review article published in 1970, Professor Scalia argued that the doctrine of sovereign immunity historically did not apply in public lands cases. On the Court he has penned two of the most significant decisions addressing judicial review of public lands administration, each of them imposing …

Road Rage And R.S. 2477: Judicial And Administrative Responsibility For Resolving Road Claims On Public Land, Bret C. Birdsong

Scholarly Works

The past decade has seen the D-4 Caterpillar bulldozer become a significant tool for those seeking to challenge federal land management agencies' authority to protect resources federal lands by reducing access. The power of the bulldozer is both symbolic and pragmatic. It cuts an iconographic image of local officials standing up against federal control over vast areas of land in the rural west. But it also, in many cases, provokes litigation, allowing claims to property rights to receive judicial attention that might otherwise evade them.

Underlying each of these protagonist's legal positions, if not their motivations, is a right-of-way grant …

Discrimination In Our Midst: Law School's Potential Liability For Employment Practices, Ann C. Mcginley

Scholarly Works

Studies and articles examining tenured, tenure-track and contract faculty in law schools have exposed the inequalities that women face when compared with their male counterparts. This article asks the legal academic community to consider these conditions in light of established Title VII doctrine which forbids discrimination because of sex. This article offers a hypothetical about the fictitious National Law School, whose labor relationships mimic those of many real law schools in a number of ways. Based on the facts in this hypothetical, the article explores different possible causes of action, either systemic or individual, that employees could reasonably win against …

Lawyers, Democracy, And Dispute Resolution: The Declining Influence Of Lawyer-Statesmen Politicians And Lawyerly Values, Jeffrey W. Stempel

Scholarly Works

This Comment reviews the shrinking presence of lawyers in the arena of macrocosmic public policy. It also discusses the declining statesmanship of lawyer-politicians as part of a general decline of lawyer professionalism in the face of social and economic pressures tending to undermine lawyer professionalism. Furthermore, it addresses how the net impact of these factors undermines the potential of lawyers to act as a positive force for public policy dispute resolution.

Report Regarding The Pacific Mcgeorge Workshop On Globalizing The Law School Curriculum, Thomas O. Main

Scholarly Works

No abstract provided.

Cooperative Federalism And Natural Resources Law, Robert L. Fischman

Articles by Maurer Faculty

Cooperative federalism describes an arrangement under which a national government induces coordination from subordinate jurisdictions, such as states and tribes, through incentives rather than requirements. In environmental law, cooperative federalism highlights the divide between pollution control and resource management. This article examines the divide from both sides.

Even though almost all of the environmental law commentary on cooperative federalism focuses exclusively on the pollution control side, the basic elements of cooperative federalism can be combined in a wider variety of forms than are recognized by most pollution control programs or scholarship. This article reviews the ways in which resource management …

Envisioning The Modern American Fiscal State: Progressive-Era Economists And The Intellectual Foundations Of The U.S. Income Tax, Ajay K. Mehrotra

Articles by Maurer Faculty

At the turn of the twentieth century, the U.S. system of public finance underwent a dramatic, structural transformation. The late nineteenth-century system of indirect taxes, associated mainly with the tariff, was eclipsed in the early decades of the twentieth century by a progressive income tax. This shift in U.S. tax policy marked the emergence of a new fiscal polity - one that was guided not simply by the functional and structural need for government revenue but by concerns for equity and economic and social justice. This Article explores the paradigm shift in legal and economic theories that undergirded this dramatic …

The Judgment Of The Boss On Bossing The Judges: Bruce Springsteen, Judicial Independence, And The Rule Of Law, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Migrating Towards Minority Status: Shifting European Policy Towards Roma, Timothy W. Waters, Rachel Guglielmo

Articles by Maurer Faculty

During the 1990s, European policy towards Roma evolved from concern about migration toward rhetoric about rights. In this article we trace that shift across two OSCE reports. Following rhetorical-action models, we show how the EU's commitment to enlargement and "common values" compelled it to elaborate an internal approach to minority protection. Concerns about migration persist, but Europe now has to consider how to integrate Roma as minorities.

Regulating International Lawyers: The Legal Consultant Rules, Carole Silver

Articles by Maurer Faculty

No abstract provided.

German Legal Culture And The Globalization Of Competition Law: A Historical Perspective On The Expansion Of Private Antitrust Enforcement, Hannah Buxbaum

Articles by Maurer Faculty

One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic …

Protecting The Innocent: The Massachusetts Governor's Council Report, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

A Hard Look Or A Blind Eye: Administrative Law And Military Deference, Jonathan Masur

UC Law Journal

The subject of judicial deference to the military in time of war has spawned a rich and variegated literature. The vast majority of these articles have focused upon what one might term "legal deference," or courts' willingness to construe the military's statutory and constitutional authority broadly, while simultaneously narrowing the legal restraints upon its actions. This Article adopts a divergent approach, taking as its point of departure the argument that the modem wartime jurisprudence is defined as much by the manner in which courts treat the executive's factual assertions as the fashion in which those courts have construed the legal …

Some Bargain: How Bankruptcy Courts May Now Require A Debtor To Relinquish Expectations Of Privacy As A Condition Of The Bankruptcy Bargain, Jennifer Taylor

UC Law Journal

There was a time when incurring debt and becoming insolvent was considered a crime. Although those days are long gone, discharge of debt in bankruptcy continues to be premised upon the debtor's cooperation in the "bankruptcy bargain." Honesty and disclosure of certain relevant information is required in exchange for a "fresh start." This Note explores the level of scrutiny that an individual debtor must submit to as part of the bankruptcy bargain by asking and answering the Fourth Amendment question: What is society "prepared to recognize as reasonable?" Contrary to the recent opinion of one bankruptcy court that went so …

Road Rage And R.S. 2477: Judicial And Administrative Responsibility For Resolving Road Claims On Public Lands, Bret C. Birdsong

UC Law Journal

Throughout the west, efforts to protect wild lands are being hampered by counties' and states' assertions of road ownership on public lands. On several occasions in the past decade, rural westerners have climbed atop bulldozers and scraped roads across some of the nation's most pristine lands, including National Parks, National Forests, and National Monuments, in the latest battle of the "sagebrush rebellion." The cover of Time magazine made one bulldozing county commissioner, Dick Carver of Nye County, Nevada, a folk hero for many rural westerners. Other counties' deployment of bulldozers has landed them in court, where they defend against the …

Protecting Mutual Funds From Market-Timing Profiteers: Forward Pricing International Fund Shares, David Ward

UC Law Journal

It has been the worst crisis in the eighty-year history of the mutual fund industry. Beginning with a probe by New York Attorney General Eliot Spitzer, investigators and securities regulators have uncovered widespread improprieties in the $7.5 trillion mutual fund business. In case after case, hedge fund managers, brokers and mutual fund executives conspired to allow favored investors to rapidly trade in and out of mutual funds, taking advantage of pricing inefficiencies to reap hundreds of millions of dollars in profits at the expense of long-term shareholders. This Note examines the recently uncovered abuses within the industry and the responses …

The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill

UC Law Journal

This Article addresses the ongoing-and, indeed, accelerating process of sporadic, piecemeal, and unnecessary legislation leading to increasing inconsistencies and irrationalities in American criminal law. After a wave of modernization in the I960s and 1970s, the past generation has not witnessed further advances, but rather a serious and growing degradation of most criminal codes.

This Article offers several insights regarding criminal code degradation. First, it provides specific and concrete examples of degradation and its harmful effects. Second, drawing on their experiences as participants in the recent reform efforts of Illinois and Kentucky, the authors offer an insider's view of how the …

Free Exercise And The Problem Of Symmetry, Nelson Tebbe

UC Law Journal

A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Curiously, leading critics of the Supreme Court's approach have not taken issue with neutrality itself, but instead have argued that the Court has adopted the wrong sort of neutrality principle. In this Article, the author argues that neutrality of any stripe will be insufficient to vindicate the critics' own vision because of a difficulty called the problem of symmetry. Liberty, by contrast, is asymmetrical and consequently it delivers more attractive outcomes in real cases. The author proposes a liberty rule, describes how it would work, and defends …

Two Wrongs Don't Make A Patent Right, David Catechi

UC Law Journal

Recent litigation over genetically modified corn reveals an increasing imbalance between the property rights of genetic seed manufacturers and the rights of individual farmers. Common-law property doctrines and traditional patent law fail to protect farmers leaving them exposed to both potential genetic contamination of their crops and costly patent infringement liability. This Note proposes a simple yet effective solution-Notice. Requiring patent holders to provide notice to alleged infringing farmers sufficient to enable the farmer to cease infringement balances the rights of both the patent holder and the farmer. Litigation in both the United States and Canada regarding gentically modified corn …

Recusal And The Supreme Court, Debra Lyn Bassett

UC Law Journal

From Laird v. Tatum to Bush v. Gore, the refusal of some Supreme Court Justices to recuse themselves in controversial cases has caused reactions ranging from confusion to disgust. The latest "duck hunting" recusal controversy, and the Court's seemingly callous response to the public outcry, seemed to suggest a deliberate indifference to the recusal standard. This Article examines the recusal provisions applicable to the Supreme Court. There is little doubt that Congress drafted the federal recusal statute broadly and intended to encompass Supreme Court Justices within the statute's reach. However, interesting questions surround recusal in the Supreme Court due to …

Persuasion, Transparency, And Government Speech, Gia B. Lee

UC Law Journal

Recent news reports indicate that federal, state, and local government entities and officials engage in pseudonymous or anonymous communications more often than we might imagine. Current trends, including advances in technology and the blurring of the public/private distinction, suggest that those types of communications will become only more frequent. Yet thus far there has been no sustained legal or constitutional analysis of such communications. This Article addresses that omission. It examines the issue of veiled government communications by drawing upon not only constitutional theory and case law but also social science research that explains how governments persuade and how citizens …