Showing papers in "Chicago-Kent} Law Review in 1999"

Genetic Diversity and the Politics of Difference

Abstract: The Human Genome Diversity Project has encountered worldwide criticism of its activities both by the peoples it proposes to study and scientists. Reasons for this criticism are examined with an emphasis on the wide-spread fears associated with increased commodification of human DNA. It is argued that, in spite of the proposed involvement of communities in research design and the revision of ethical protocols, confrontational biopolitics associated with the procurement of human tissue samples will continue, particularly when indigenous peoples are made into research subjects.

Open Code and Open Societies: Values of Internet Governance

Abstract: Pierre de Fermat was a lawyer and an amateur mathematician. He published one paper in his life—an anonymous article written as an appendix to a colleague’s book. But while he published little, he thought lots about the open questions of mathematics of his time. And in 1630, in the margin of his father’s copy of Diophantus’ Arithmetica, he scribbled next to an obscure theorem (“X+Y=Z has no non-zero integer solutions for N>2”): “I have discovered a truly remarkable proof which this margin is too small to contain.”1 It’s not clear that Fermat had a proof at all. Indeed, in all his mathematical papers, there was but one formal proof. But whether a genius mathematician or not, Fermat was clearly a genius selfpromoter, for it is this puzzle that has made Fermat famous. For close to four hundred years, the very best mathematicians in the world have tried to pen the proof that Fermat forgot. In the early 1990s, after puzzling on and off about the problem since he was a child, Andrew Wiles believed that he had solved Fermat’s Last Theorem. He published his results—on the Internet, as well as other places—but very soon afterwards, a glitch was discovered. The proof was flawed. So he withdrew his claim to having solved Fermat’s Theorem. But he could not withdraw the proof. It was out there, in the ether of the Internet, and could not be erased. It was in the hands of many people, some of whom continued to work on the proof, even though flawed. And after extensive and engaged exchange on the Net, the glitch was undone. The problem in Wiles’ proof was fixed. Fermat’s Last Theorem was solved.2

Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law

Abstract: Tort law assesses negligence according to the conduct of a reasonable person of ordinary prudence who acts with due care for the safety of others1 This standard assigns three traits to the person whose conduct sets the bar for measuring negligence: reasonableness, ordinary prudence, and due care for the safety of others Yet contemporary tort scholars have almost exclusively examined only one of these attributes, reasonableness, and have wholly neglected to carefully examine the other elements key to the negligence standard: prudence and due care for the safety of others It is mistaken to reduce negligence to reasonableness or to try to understand the sense of reasonableness contemplated by the negligence standard without reference to the virtues of prudence and benevolence Taken together and analyzed in relation to one another, these three traits define a distinct evaluative perspective, according to which some actions expose oneself and others to inappropriate risk of physical harm, and others do not In this chapter, I only partially articulate this evaluative perspective, focusing on its dimensions defined by prudence and care and leaving to one side the dimension defined by reasonableness I have restricted the exposition partly because of limits, of the article format,2 and partly to counterbalance the overattention to reasonableness that has characterized tort scholarship of the last fifty years

Reconstructing America's Social Contract in Employment: The Role of Policy, Institutions, and Practices

Abstract: The primary challenge facing labor and employment policy in the next decade is to reconstruct the social contract between the American workforce and employers in ways that address the needs and realities of a modern economy and society. To do so the country will need to modernize the labor and employment policies carried over from the New Deal era and foster innovations in labor unions, labor market institutions, corporations, and in their relationships. Unfortunately, the political will to take on this task is absent at the national level of policy making and political discourse. Instead, the past two decades have been characterized by failed efforts at incremental reforms in labor policy, starting with the 1977 labor law reform debate and more recently illustrated by the failure of the Dunlop Commission to break the political impasse over labor and employment policy. The result is that analysis and debates over these issues have been marginalized as “special interest politics.”

The Limits of Social Norms

Abstract: Legal scholars have expressed a growing interest in the power of social norms. Legal scholars now frequently argue that people obey the law even in the absence of legal sanctions and order their lives effectively without the assistance of courts, legislatures, and administrative agencies. This work promises to provide social reformers with inexpensive and effective ways of controlling anti-social behavior. Social psychologists, however, have conducted decades of research on social norms indicating that it is difficult to manipulate behavior by manipulating social norms in a reliable manner. Although social norms are important determinants of behavior, their influence can also be quite ephemeral. This Article presents social psychological research demonstrating that social norms are both more powerful and less powerful than legal scholars have heretofore recognized.

Electronic Chattel Paper under Revised Article 9: Updating the Concept of Embodied Rights for Electronic Commerce

Abstract: When UCC Article 9 was revised in 1998, a new provision governing “electronic chattel paper” (ECP) was added. “Chattel paper” is widely used in certain industries to finance the purchase of equipment, and includes loans and leases. Under former Article 9, chattel paper financers who took possession of the chattel paper could gain priority over other secured lenders who ear-lier perfected by filing, and equipment financers sought assurances they could retain this su-per-priority status if they switched from paper to electronic records. The concept of perfection by “control” of financial assets held in electronic form had been established with the revisions of UCC Article 8 in 1994, but a new model for control of electronic chattel paper was deemed necessary because chattel paper market institutions differed significantly from market institutions covered by the revised Article 8 provisions. Revised Article 9 provides that ECP must consist of a single authoritative copy of the chattel paper record or records which is unique, identifiable, and generally unalterable. This represents a significant innovation in commercial law because it updates the concept of rights embodied in the representation of financial assets, rather than accommodating the growth of account-based systems of tracking ownership of financial assets.