Law Commons^™

Intentional Diminishment, The Non-Identity Problem, And Legal Liability, I. Glenn Cohen

UC Law Journal

This Article, lying at the intersection of law and bioethics, examines whether it is wrongful to use assisted reproductive technology to intentionally create disabled children, and whether legal liability should attach to such acts. In particular, this Article considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all.

In her article in this Issue, Kirsten Smolensky suggests that …

Creating Children With Disabilities: Parental Tort Liability For Preimplantation Genetic Interventions, Kirsten Rabe Smolensky

UC Law Journal

Using preimplantation genetic diagnosis (PGD), parents can now screen embryos for genetic traits such as deafness and achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent trend raises the important legal question of whether a child can sue his parents in tort for selecting or engineering disabling genetic traits.

This Article suggests that children both can and should be able to successfully sue parents who engage in certain direct genetic interventions. First, tort law should protect a child's moral right to an open future where parents' preimplantation …

The Forgotten Frontier - Healthcare For Transgender Detainees In Immigration And Customs Enforcement Detention, Dana O'Day-Senior

UC Law Journal

a challenge for anyone, but for transgender individuals, the lack of healthcare policy specifically addressing the healthcare needs of transgender individuals can mean that ICE detention is hazardous to one's health. Many researchers have studied the challenges faced by transgender individuals in the prison setting, and many researchers have examined the problems with healthcare access and delivery in ICE detention facilities. However, so far no one has bridged the gap between the two areas of research and looked at the specific challenges ICE detention poses for healthcare for transgender individuals.

This Note attempts to bridge that gap by focusing into …

Prosecuting Elder Abuse: Setting The Gold Standard In The Golden State, Arthur Meirson

UC Law Journal

This Note proposes amending California's elder abuse law. Currently, California Penal Code sections 368(b) and (c) allow the prosecution of any person who willfully causes or permits a person they know to be an elder or dependent adult "to suffer, or inflicts thereon unjustifiable physical pain or mental suffering." The failing of this law is its focus on the subjective experience of the elder or dependent adult victim. Because the law only allows punishment where the victim suffers or experiences unjustifiable physical pain or mental suffering, there are numerous circumstances that allow a perpetrator of abuse to escape prosecution. These …

Toward The Next Generation Of Galanter-Influenced Scholars: The Influential Reach Of A Law-And-Society Founder, Jayanth K. Krishnan, Stewart Macaulay

Articles by Maurer Faculty

To say that Professor Marc Galanter's scholarship is diverse would be a woeful understatement. In his over forty years of writing, Galanter's work has covered topics including (but not limited to) torts, contracts, constitutional law, comparative law, empirical legal studies, the legal profession, legal anthropology, and South Asian studies. With Galanter's scholarship so heavily cited and respected, we see it as only fitting, particularly upon his recently turning seventy-five, to acknowledge his achievements in a symposium that reflects back on the years of his work. Serving as special editors to an issue forthcoming in the Duke Law School journal, Law …

Improving Laws And Legal Authorities For Public Health Emergency Legal Preparedness, David Fidler, Robert M. Pestronk, Brian Kamoie, Gene Matthews, Georges C. Benjamin, Ralph T. Bryan, Socrates H. Tuch, Richard Gottfried, Jonathan E. Fielding, Fran Schmitz, Stephen Redd

Articles by Maurer Faculty

No abstract provided.

Book Review. Governing Through Crime: How The War On Crime Transformed American Democracy And Created A Culture Of Fear By Jonathan Simon, Jeannine Bell

Articles by Maurer Faculty

No abstract provided.

The Fair Housing Act And Extralegal Terror, Jeannine Bell

Articles by Maurer Faculty

This Article examines the implications the Fair Housing Act (FHA) has on anti-integrationist racial violence faced by racial and ethnic minority's integrating white neighborhoods. The first part of the article describes anti-integrationist violence as it occurs in two separate but distinct time periods the first occurring, before the passage of the FHA. The second time period that article addresses is the post-1968 era until the present day. In discussing the period since the passage of the Act, the article describes several important mechanisms in how the FHA functions as a remedy for extralegal violence. The Article concludes with a call …

Envisioning Post-Conviction Review For The Twenty-First Century, Joseph L. Hoffmann, Nancy J. King

Articles by Maurer Faculty

No abstract provided.

The "Stern Review" And Its Critics: Implications For The Theory And Practice Of Benefit-Cost Analysis, Daniel H. Cole

Articles by Maurer Faculty

The UK's Treasury's "Stern Review: The Economics of Climate Change" (Oct. 2006) reached dramatically different conclusions and policy recommendations than most earlier economic analyses of climate change. It found that the costs of climate change, as well as the potential net benefits of greenhouse gas reductions, were much higher that previously estimated, and consequently recommended more rapid and extensive cuts in emissions than other economist analysts. The Stern Review estimated that a 1% annual investment of global GDP in mitigation could prevent a 5% (or more) reduction in annual global GDP from climate change harm, forever. A number of prominent …

Navigating The New Politics Of Judicial Appointments, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

This Review Essay explores the new politics of judicial appointments by addressing the important question whether Senate-specific reforms to the judicial appointments process are likely to succeed. In his recent book, The Next Justice, Chris Eisgruber proposes a two-part plan to repair the Supreme Court appointments process. Like many other scholars that have written in the area, Eisgruber's reforms focus primarily on the Senate. First, he proposes that the Senate get smart by asking penetrating questions about the judicial philosophy of Supreme Court nominees in an effort to ensure that the future Justices are moderates, rather than extremists. Second, he …

Synthesizing Tsca And Reach: Practical Principles For Chemical Regulation Reform, John S. Applegate

Articles by Maurer Faculty

The European Union's newly enacted comprehensive regulation for industrial chemicals, known as REACH, draws heavily on three decades of experience in the United States under the Toxic Substances Control Act. Much of that experience has been negative, inasmuch as TSCA is widely regarded as a disappointment among US environmental laws, and so REACH deliberately reverses many of the legislative choices that Congress made in TSCA. REACH also takes advantage of important new regulatory concepts that were not available to the framers of TSCA thirty years ago. The passage of REACH has sparked renewed interest in reforming TSCA, and the reformers …

Bridging The Data Gap: Balancing The Supply And Demand For Chemical Information, John S. Applegate

Articles by Maurer Faculty

No abstract provided.

Book Review. From Edison To Ipod: Protect Your Ideas And Make Money By Frederick W. Mostert And Lawrence E. Apolzon, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.

Influenza Virus Samples, International Law, And Global Health Diplomacy, David P. Fidler

Articles by Maurer Faculty

Indonesia’s decision to withhold samples of avian influenza virus A (H5N1) from the World Health Organization for much of 2007 caused a crisis in global health. The World Health Assembly produced a resolution to try to address the crisis at its May 2007 meeting. I examine how the parties to this controversy used international law in framing and negotiating the dispute. Specifically, I analyze Indonesia’s use of the international legal principle of sovereignty and its appeal to rules on the protection of biological and genetic resources found in the Convention on Biological Diversity. In addition, I consider how the International …

Tax Fairness And The Tax Mix, David G. Duff

All Faculty Publications

Since a society’s tax system is one of its most basic and essential social institutions, the justice or fairness of this tax system is an important subject for social and political theory, as well as for practical politics. In order to assess the fairness of any particular tax or the tax system as a whole, however, it is essential to consider the purpose of the tax and the tax system in general. While the most obvious purpose of most taxes is to raise revenue to finance public expenditures, taxes are also employed to regulate social and economic behaviour and to …

Leases: Like Any Other Contract?, John V. Orth

Faculty Publications

No abstract provided.

Copulemus In Pace: A Meditation On Rape, Affirmative Consent To Sex, And Sexual Autonomy, Dan Subotnik

Scholarly Works

No abstract provided.

An Analysis Of Thirty-Five Years Of Rape Reform: A Frustrating Search For Fundamental Fairness, Richard Klein

Scholarly Works

This article will analyze the most significant changes in the manner in which individuals who are charged with the crime of rape are prosecuted for that offense. In the last thirty-five years, there has been a steady erosion of the due process rights of those accused of rape.

Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller

Scholarly Works

There have been many well-articulated and convincing critiques aimed at mandatory arbitration. Indeed, presently before Congress is proposed legislation titled the Arbitration Fairness Act, that would ban pre-dispute arbitration in the consumer, franchise and employment contexts. However, maligned as the plaintiff bar's pro-lawsuit legislation, the Arbitration Fairness Act is predicted to have very little chance of enactment. Consequently, across varying industries, the pre-dispute arbitration regime endures unheedingly. Thus, this Article sets aside the arguments aimed generally at pre-dispute arbitration clauses and, instead, sets its sights on some of the terms that seem to arise in such clauses. The focus here …

The Lawyer Scribe: The Litchfield Law School, Laptops, And The Metaphysics Of Soul-Searching, Louise Harmon

Scholarly Works

No abstract provided.

Are Law Schools Racist?: A "Talk" With Richard Delgado (Symposium: Deconstructing Race: When Reasonable Minds Differ), Dan Subotnik

Scholarly Works

No abstract provided.

Are Law Schools Racist? - Part Ii (Symposium: Deconstructing Race: When Reasonable Minds Differ), Dan Subotnik

Scholarly Works

No abstract provided.

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

Scholarly Works

No abstract provided.

In Memoriam: Professor Joseph J. Beard, Douglas D. Scherer

Scholarly Works

No abstract provided.

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

Scholarly Works

A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

A Response To Professor Steinberg’S Fourth Amendment Chutzpah, Fabio Arcila

Scholarly Works

Professor David Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether …

Bernard S. Meyer Et Al., The History Of The New York Court Of Appeals, 1932-2003, Meredith R. Miller

Scholarly Works

No abstract provided.

Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, And The New York Emergency Rent Laws Of 1920: A Case Study In The Role Of Jewish Lawyers And Jewish Law In Early Twentieth Century Public Interest Litigation, Samuel J. Levine

Scholarly Works

In this Article, Levine examines the litigation surrounding the New York Emergency Rent Laws of 1920. In particular, he focuses upon a series of cases litigated by two of the most prominent Jewish lawyers in United States in the first half of the twentieth century: Louis Marshall and Julius Henry Cohen. Among other notable aspects of the litigation, the cases reached the New York Court of Appeals and the United States Supreme Court, which at that time included two of the most eminent jurists in the history of the United States, Judge Benjamin N. Cardozo and Justice Oliver Wendell Holmes, …

Modes Of Procedural Reform, Richard L. Marcus

Faculty Scholarship

No abstract provided.