Law and Society Commons^™

Paradoxes Of Health And Equality: When A Boy Becomes A Girl, Noa Ben-Asher

ExpressO

This paper is about an unusual child custody dispute between the parents of a six-year-old child and the child welfare services of Franklin County, Ohio. The conflict emerged when the child’s parents complied with their male child’s professed desire to be treated as a girl by attempting to enroll the child in the first grade as a girl. The paper treats this case as an exemplary test-case of contemporary co-dependence between scientific-medical discourse and liberal-rights discourse. The paper analyzes the positions of the two sides of the custody dispute according to the classic modern distinction between mind and body. On …

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

ExpressO

Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …

The Effects Of Jury Ignorance About Damage Caps: The Case Of The 1991 Civil Rights Act, Rebecca Hollander-Blumoff, Matthew T. Bodie

ExpressO

No abstract provided.

Embedded Psychology In Mens Rea Determinations: Systematic Differences Between Legal Standards And Reasoning Processes Across Cultures, Justin D. Levinson

ExpressO

The mens rea inquiry asks jurors to determine a defendant’s mental state at a particular moment in time. Social and cultural psychological research, however, suggests that jurors (and people generally) may not understand others’ mental states in ways consistent with legal standards. In this article, the author theoretically and empirically examines (across culture) how jurors understand defendants’ mental states, investigating whether they can apply mental state inquiries in a manner consistent with domestic and international policy goals. After testing several mental state variables, the author finds that the law’s hierarchy of mental states frequently does not match jurors’ psychological processes. …

The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen

ExpressO

The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …

Owning Music: From Publisher's Privilege To Composer's Copyright, Michael W. Carroll

ExpressO

More than four years after Napster demonstrated the power of the Internet as a means of distributing music, we still are in the midst of a cultural and legal debate about what the respective rights of music copyright owners, follow-on creators, disseminators, and purchasers should be. A common assumption underlying much of the debate is that whatever settlement emerges, it will apply equally to all forms of expression. This Article questions that assumption by investigating the early history of copyright in music.

For the first time in legal scholarship, the Article reveals and examines the distinct early history of copyright …

Media Policy Out Of The Box: Content Abundance, Attention Scarcity, And The Failures Of Digital Markets, Ellen P. Goodman

ExpressO

No abstract provided.

Textual Harassment: A New Historicist Reappraisal With Gender In Mind, Hila Keren

ExpressO

No abstract provided.

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

ExpressO

The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Achieving Batterer Accountability In The Child Protection System, Leigh Goodmark

ExpressO

No abstract provided.

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

In The Minds Of Men: A Theory Of Compliance With The Laws Of War, William C. Bradford

ExpressO

Whether, and, if so, why states elect to comply with international law are now the most central questions within the international legal academy. A skein of theories has been woven over the last decade to explain and predict state compliance, and a number of factors, including, inter alia, a desire to generate reciprocity, an interest in reducing transaction costs, normative commitments, domestic considerations, the degree of domestic incorporation of international legal regimes, reputational concerns, and fear of punishment, are purported to be causally linked.

However, as the study of international legal compliance ["ILC"] has matured, intramural divisions have been compounded …

The Roadmap For Failure: Israeli And Palestinian Discountenance And Misunderstanding, John J. Marciano

ExpressO

As tensions rise with the assassination of key Hamas figures, the situation in Israel and the Occupied Territories call out for committed, reasoned action. In the past, the peace process has consisted of half-hearted attempts to pacify both the Israeli and Palestinian populaces. This is exemplified by the recent Roadmap for peace, which was supported by the United States.

However, the lack of true dedication among the players has arguably resulted in crimes against humanity on both sides. The previous peace plans fail to recognize this, and have perpetuated the violence with cookie-cutter approaches that are not closely tailored to …

Essay, Digital Bowdlerizing: Removing The Naughty Bytes, Llewellyn Joseph Gibbons

ExpressO

Unlike Dr. Bowdler, who republished the works of Shakespeare with the naughty bits removed, the modern digital Bowdlerizer deletes offensive content from digital works in a variety of ways. This Essay will analyze the technologies used by the modern Bowdlerizer to determine when, if, and which technologies make copies in violation of the copyright owner’s § 106(1) right to control reproduction or make derivative copies of a preexisting work that may infringe the copyright owner’s 17 U.S.C. § 106(2) right to authorize the creation of derivative works. These technologies not only support militant prudery, but they also may add new …

Fine Art Online: Digital Imagery And Current International Interpretations Of Ethical Considerations In Copyright Law, Molly A. Torsen

ExpressO

This writing explores the fast-changing intersection of law, technology and ethical considerations related to the visual arts. My paper explores differences in domestic intellectual property laws as well as regional considerations in moral rights law application.

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

Securing Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese

ExpressO

No abstract provided.

Writing Their Faith Into The Law Of The Land: Jehovah's Witnesses, The Supreme Court And The Battle For The Meaning Of The Free Exercise Clause, 1939-1945, Patrick J. Flynn

ExpressO

The article traces the development of free exercise jurisprudence through the battles of Jehovah's Witnesses before the Court, and the battles on the Court between Justices Black, Douglas and Frankfurter to establish their constitutional faiths as the law of the land during a brief period in the early 1940's when these issues came before the Court in a flurry of decisions, then disappeared.

Rights At United States Borders, Jon Adams

ExpressO

This article explores protections available under the Fourth and Fifth Amendments to the United States Constitution. Contrary to opinions in popular culture, and perhaps even among Customs officials, powers to search, seize, and interrogate at United States border crossings are not unlimited. In the current world climate of security and threat, a discussion regarding the level of intrusiveness available to a zealous Customs agent appears particularly relevant. The article addresses the requirements for search, seizure, and interrogation, as well as the lawful conditions and limits upon each activity.

Innovation, Regulation And The Selection Environment, Timothy F. Malloy, Peter Sinsheimer

ExpressO

This article focuses on the question of how regulation can be best designed to encourage technological innovation. Most scholarship in this area applies standard economic analysis to evaluate the impact of various forms of regulation on technological innovation. We reject that approach as too narrow, drawing instead upon principles of evolutionary economics. The basic premise of the article is that a firm’s technology choices—and its response to regulation intended to shape those choices—are influenced by other actors (such as suppliers and competitors), by external social and legal institutions (e.g., industry standards and norms) and by the firms' internal structure (such …

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

What Is Fiscal Responsibility? Long-Term Deficits, Generational Accounting, And Capital Budgeting, Neil H. Buchanan

Rutgers Law School (Newark) Faculty Papers

This article assesses three basic approaches to assessing the future effects of the government’s fiscal policies: traditional measures of the deficit, measures associated with Generational Accounting, and measures derived from applying Capital Budgeting to the federal accounts. I conclude that Capital Budgeting is the best of the three approaches and that Generational Accounting is the least helpful. Acknowledging that there might be some value in learning what we can from a variety of approaches to analyzing fiscal policy, I nevertheless conclude that Generational Accounting is actually a misleading or--at best--empty measure of future fiscal developments. The best approach to providing …

Constitutionalism In The Streets, Gary D. Rowe

ExpressO

This Article works at the border of constitutional history and constitutional law. It embarks on a reconstruction of constitutionalism in the early American Republic through a microhistorical case study, an analysis of the fascinating United States v. Peters (1809), the first Supreme Court decision to strike down a state law. In the last half century, the Supreme Court has repeatedly asserted that it is the “ultimate expositor of the constitutional text.” From Cooper v. Aaron to United States v. Morrison, the Court has invoked no less than the authority of Chief Justice John Marshall and his opinion in Marbury v. …

The Cocaine Vaccine, Dru Stevenson

ExpressO

The controversial new cocaine vaccine (TA-CD) has the potential to be an extremely effective treatment tool for recovering addicts, but it also presents opportunities for non-therapeutic uses, such as preventing cocaine use in the first place. It is foreseeable that the cocaine vaccine could become a condition of parole or probation, or receiving welfare payments, or for employment in certain occupations. Universal vaccination is also a possibility but less likely for political reasons. This article investigates each of these areas of potential use. Any setting where mandatory drug testing is currently in place could become a venue for the vaccination. …

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

Gentleman's Agreement: The Antisemitic Origins Of Restrictions On Stockholder Litigation, Lawrence E. Mitchell

ExpressO

A deeply ingrained, seemingly ineradicable, hostility to plaintiffs’ lawyers and especially to plaintiffs’ lawyers in stockholder suits seems to have existed for most of the past century. This hostility is manifest not only in the tone of judicial opinions but in law review articles, the popular press, and, often, in legislation. This article analyzes the circumstances under which the first security-for-expense statute was adopted in New York in 1944, including the contemporaneous justification for the statute, focusing on the demographics of the New York bar at the time and the ethnic sociology of New York. In so doing, it concludes …