Law Commons^™

"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond

Michigan Law Review First Impressions

The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions …

Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson

Michigan Law Review First Impressions

The Constitution's original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island's ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Flouting The Elmo Necessity And Denying The Local Roots Of Interpretation: "Anthropology's" Quarrel With Acta And Authoritarian Ip Regimes, Alexander S. Dent

Joint PIJIP/TLS Research Paper Series

This paper uses an anthropological definition of culture to examine the intensification of intellectual property policing, coupled with an expansion of its definition. These are ACTA’s aims. I argue that acts of sharing lie at the root of communication; humans must share in order to learn. Furthermore, symbols change their meaning as they circulate in different cultural contexts. Therefore, in denying the fundamental importance of sharing and local interpretation, ACTA will not only fail spectacularly as a policy document. It will also fuel a “war” on file-sharers, users of generic medicines, and manufacturers, sellers, and buyers of imitative goods and …

Breakdown In The Language Zone: The Prevalence Of Language Impairments Among Juvenile And Adult Offenders And Why It Matters, Michele M. Lavigne

Michele M LaVigne

For over eighty years, social scientists have known that poor language skills are closely associated with the constellation of emotional and behavioral disturbances routinely seen in juvenile and criminal court. These include conduct disorder, academic deficits, social incompetence, impulsivity, and even aggression. As we might expect, researchers have also found that language impairments are present at a high rate within juvenile and adult correctional institutions. So far however, the law has yet to acknowledge even the existence of this body of social science, let alone its significance for the administration of justice, rehabilitation, and public safety. This article is an …

The United States Are But One Country: A Short History Of Grammar And Liberty, Charles R. Gardner

Charles Gardner

This legal essay traces the conversion of “the United States” from a plural to a singular noun in United States Supreme Court decisions, in presidential proclamations and inaugural addresses, in diplomatic correspondence and in public discourse. It did not happen with a bang at the end of the Civil War, but with a whimper at the beginning of the twentieth century.

Today, at the beginning of the twenty-first, the singularity of humanity, for which that conflagration was allegedly fought, still eludes us. It is that latter singularity that inspires and organizes this essay.

Not until the digital age was it …

Marital Naming/Naming Marriage: Language And Status In Family Law, Suzanne A. Kim

Indiana Law Journal

What's in a name? Based on current family law and policy debates, the answer would seem to be: a whole lot. Today's discussion of legal prohibitions of same-sex marriage abounds with the assumption that language, in the form of names and labels, is deeply meaningful from a status perspective. Missing from this debate, however, is a careful examination of the role that names and labels play in the construction of the status category of marriage. This Article fills this gap in family law scholarship by providing an explicit account of how language plays a critical role in reflecting and reinforcing …

Breakdown In The Language Zone: The Prevalence Of Language Impairments Among Juvenile And Adult Offenders And Why It Matters, Michele M. Lavigne

Michele M LaVigne

For over eighty years, social scientists have known that poor language skills are closely associated with the constellation of emotional and behavioral disturbances routinely seen in juvenile and criminal court. These include conduct disorder, academic deficits, social incompetence, impulsivity, and even aggression. As we might expect, researchers have also found that language impairments are present at a high rate within juvenile and adult correctional institutions. So far however, the law has yet to acknowledge even the existence of this body of social science, let alone its significance for the administration of justice, rehabilitation, and public safety. This article is an …

Breakdown In The Language Zone: The Prevalence Of Language Impairments Among Juvenile And Adult Offenders And Why It Matters, Michele M. Lavigne

Michele M LaVigne

For over eighty years, social scientists have known that poor language skills are closely associated with the constellation of emotional and behavioral disturbances routinely seen in juvenile and criminal court. These include conduct disorder, academic deficits, social incompetence, impulsivity, and even aggression. As we might expect, researchers have also found that language impairments are present at a high rate within juvenile and adult correctional institutions. So far however, the law has yet to acknowledge even the existence of this body of social science, let alone its significance for the administration of justice, rehabilitation, and public safety. This article is an …

Breakdown In The Language Zone: The Prevalence Of Language Impairments Among Juvenile And Adult Offenders And Why It Matters, Michele M. Lavigne, Gregory J. Vanrybroek

Michele M LaVigne

For over eighty years, social scientists have known that poor language skills are closely associated with the constellation of emotional and behavioral disturbances routinely seen in juvenile and criminal court. These include conduct disorder, academic deficits, social incompetence, impulsivity, and even aggression. As we might expect, researchers have also found that language impairments are present at a high rate within juvenile and adult correctional institutions. So far however, the law has yet to acknowledge even the existence of this body of social science, let alone its significance for the administration of justice, rehabilitation, and public safety. This article is an …

Fixing Patent Boundaries, Tun-Jen Chiang

Michigan Law Review

The claims of a patent are its boundaries, defining the scope of exclusion. This boundary function of claims is undermined by the fact that claims can be changed throughout the life of the patent, thereby moving the patent boundary. A boundary that can be moved at-will is one that the public cannot rely upon. This Article explores the problems of malleable patent boundaries. If a claim can be amended to permit a patentee to capture something he did not foresee when filing the patent application, the amendment confers an unexpected windfall that did not contribute to incentives to invent before …

It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn

Articles

This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and …

Amazigh Legitimacy Through Language In Morocco, Sarah R. Fischer

Human Rights & Human Welfare

Contemporary Morocco rests at a geographic and developmental crossroads. Uniquely positioned on the Northwestern tip of Africa, Morocco is a short distance away from continental Europe, cradled between North African tradition and identity, and Western embrace. The landscape is varied: craggy mountains trail into desert oases; cobbled streets of the medina anchor the urban centers; mud homes dot the rural countryside. Obscured from the outside observer, behind the walls of the Imperial cities and between the footpaths of village olive groves, Morocco’s rich and diverse Arab and Amazigh cultures and languages circle one another in a contested dance. Morocco’s identity …

Watch Your Language: A Review Of The Use Of Stigmatizing Language By Canadian Judges, Jocelyn Downie, Michelle Black

Articles, Book Chapters, & Popular Press

Despite ongoing advances in understanding the causes and prevalence of mental health issues, stigmatizing language is still often directed at people who have mental illness. Such language is regularly used by parties, such as the media, who have great influence on public opinion and attitudes. Since the decisions from Canadian courtrooms can also have a strong impact on societal views, we asked whether judges use stigmatizing language in their decisions. To answer this question, we conducted a qualitative study by searching through modern Canadian case law using search terms that were indicative of stigmatizing language. We found that, although judges …