Traditional Legal Analysis Research Articles

PROPERTY RIGHTS IN BLOOD,GENES ANDDATA NATURALLY YOURS?

Taking a case and context driven approach and backing up traditional legal analysis with historical analogies, web-surveys and practical experience, Jasper Bovenberg provides counter-intuitive, provocative and practical answers and recommendations for such controversial issues as how to share the benefits of DNA research, whether or not to recognize personal property rights in bodily material and access to biomedical datasets in academia.

An emerging ontology of jurisdiction in cyberspace

The emergence of the new information economy has complicated jurisdictional issues in commerce and crime. Many of these difficulties are simply extensions of problems that arose due to other media. Telephones and fax machines had already complicated jurists' determinations of applicable laws. Even before the Internet, contracts were often negotiated without any face-to-face contact – entirely by telephone and fax. Where is such a contract negotiated? The answer to this question is critical to any litigation that may arise over such contracts. The laws of contract are often quite different from one jurisdiction to the next. The Internet has brought with it new forms of communication which make determining the loci of acts even more complicated. Where are contracts negotiated when they are negotiated in cyberspaceq Business is being conducted in chat rooms, on web sites, and through e-mail. Each of these is technically distinct from telephones and fax machines. More importantly, these tools seem ontologically different, in varying degrees, from traditional methods of communication. The question is, are these ontological differences sufficient to warrant new legal notions of jurisdiction in cyberspaceq Only a thorough ontological analysis of the parts of cyberspace and acts ``in'' it can reveal the answers to the legal questions posed by this new medium. Traditional legal analyses have relied, in part, on a crude legal ontology. That is, courts have grappled with notions of the topology and mereology of the world and legal objects when considering questions of jurisdiction. There is a simpler, theoretically sound method for determining legal jurisdiction which is based upon the notion of ``purposeful direction,'' and which treats computer-mediated transactions as just another form of communication. I will explore that method below.

WEIGHT‐BASED DISCRIMINATION IN EMPLOYMENT: PSYCHOLOGICAL AND LEGAL ASPECTS

This article takes an interdisciplinary approach to the issue of weight‐based discrimination in employment, drawing on diverse literatures (psychology, law, sociology, economics), and integrating a review of empirical research and a traditional legal analysis. First, empirical research that focuses on the extent of bias against overweight individuals in employment contexts is reviewed and evaluated. Second, current legal requirements relevant to weight‐based discrimination in employment are identified and discussed, and those requirements are applied to the research findings to assess the extent to which the weight‐based bias identified in the reviewed studies involves illegal discrimination. Third, based on the results of the review of the research and legal literatures, future research directions are offered and practical implications for employers and policy makers are identified.

Information as Property: Humanism or Economic Rationalism in the Millenium?

Current and traditional legal analyses have repeatedly denied to information the status, quality and incidents of property. In Breen v. Williams,1 the High Court considered the extent to which any proprietary interest could be said to exist in information, articulating the position of Australian law with respect to the protection of any such interests. Brennan CJ was unequivocal, citing Lord Upjohn in Phipps v Boardman2 to the effect that [i]n general, information is not property at all'V while recognising that any legal protections to be associated with information derived from the courts' power in equity to restrain transmission in breach of an apprehended confidential relationship.

Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals

In traditional legal analysis, scholars take for granted the effect of Supreme Court doctrine. Lower courts are presumed to adhere to the self-enforcing principle of stare decisis and to apply the doctrines of higher courts to the particular facts of the underlying case.1 Precedent reputedly controls lowercourt decisions.2 Whether such obedience to legal doctrine occurs as routinely as this analysis suggests, however, has not been adequately addressed in the legal literature. Indeed, there are few empirical studies by legal scholars bearing on the matter at all.3 In this Essay, we go to the heart of the issue and

“A Stranger to Its Laws”: Freedom, Civil Rights, and the Legal Ambiguity of Romer V. Evans (1996)

The Supreme Court's 1996 ruling in Romer v. Evans is widely seen as a significant extension of civil rights to gays and lesbians. We offer a reading of Romer v. Evans (1996) that eschews traditional and formalistic legal analysis in favor of more critical approaches to understanding the role of law in lived experience and communal life. In particular, we see Romer as an opportunity to engage in a “critical rhetoric,” and specifically a “critique of freedom.”

The Implementation of Constitutional Rights: Insights from Law and Economics

The study of Law and Economics focuses most often on issues of efficiency and growth. The economic approach made major contributions, for example, in the areas of regulation, liability, and contract. But an economic approach to the study of courts and law can also shed light on an area that is seldom investigated by traditional legal scholars: the implementation of judicial decisions. In this essay I demonstrate the relevance of the economic approach to the implementation of constitutional rights. In particular, I show that the economic analysis of law is central to understanding the efficacy of judicial decisions supportive of the interests of relatively powerless groups within society.' Supreme Court decisions are not self-implementing. As Alexander Hamilton pointed out long ago in The Federalist Papers, courts are particularly dependent on the actions of others. Hamilton argued in Federalist 78 that the judiciary has no influence over either the sword or the purse . . . and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.2 Without external support-from the other branches of government or directly from the citizenry-Court decisions announcing constitutional rights are unlikely to affect or change people's lives in important ways. In contrast to traditional legal analysis, the tools of economic analysis can help explain how Court-mandated constitutional rights of relatively powerless groups are actually implemented. In particular, economic analysis suggests that implementation is more likely to occur if at least one of three conditions is present:

Liability for Negligently Performed Financial Services: An Economic Theory

The law governing the recovery of negligently inflicted pure economic losses is complex and confusing. This article focuses on pure economic losses caused by negligently performed financial services, and considers whether a "law and economics" approach provides a superior framework for analysing the desirability of imposing negligence liability than that provided by traditional legal analysis. The article first discusses the law regarding negligently performed financial services and critiques the legal reasoning used to justify restricted liability. The author then introduces the law and economics approach to negligence liability. The special considerations which apply when a loss is purely economic and caused by a carelessly performed financial service are then analysed. Finally, a rule of discovery based on the economic analysis is presented, and its application is discussed with respect to some of the leading cases. The author concludes that the economic approach provides a powerful set of tools capable of explaining the major decisions in this area in terms of economic efficiency and wealth maximisation. It provides a clearer understanding of the factors that determine what the appropriate restrictions are, and is thus more convincing for determining liability than traditional legal analysis.

THE IMPACT OF PERFORMANCE APPRAISAL METHODS ON AGE DISCRIMINATION IN EMPLOYMENT ACT CASES

This study investigated the impact of personal and organizational factors and performance appraisal methods on 53 Age Discrimination in Employment Act (ADEA) federal court cases. Discriminant analysis suggested that the employer was most likely to be the successful party when the employee was younger, particularly between 40‐49 years old. Appraisal system characteristics which in previous studies were found to be significantly related to case outcome, were not reported in these case decisions. Traditional legal case analysis was used to explore the relationship of performance appraisal methods and the personnel action giving rise to the complaint.

Using Process Theory to Explain Judicial Decision Making.

This article is part of an effort to place current research on the Canadian judicial process into a broader theoretical context. This effort developed first from a sense that the legal and behavioural frameworks that have dominated the explanation of judicial decision making in the United States Supreme Court obscure more than they illuminate about judicial decision making in Canada; and second from the realization that the most illuminating American studies — those that trace the process by which major cases are brought before the courts and decided — are seen as interesting but atheoretical, as journalism not science. Perhaps our theory is out of joint. And perhaps an effort to understand how American theories and research on judicial decision making can inform Canadian research may be instructive both to American judicial studies and to the work of those outside the United States who are continually tugged toward American approaches that promise liberation from traditional legal analysis.

Report on the Center for Law and Health Sciences

The Center for Law and Health Sciences (the “Center”), a component of the Boston University School of Law (the “Law School”), organizes and conducts research and educational programs that examine selected relationships between the legal and health care systems. The Center provides the Law School with a vehicle not only for focusing research on interactions of law and health care, but also for incorporating legal analytical techniques into the projects of other health affairs units of Boston University. The Center's key goal is to create programs that contribute to an understanding (1) of the application of traditional legal analyses to issues that relate to the delivery of health services, as well as (2) of the implications arising from features of the health care system for the development of legal doctrines.

"Need" and "Overt Act" in Juvenile Court Law

The current trend of academic analysis of the juvenile court as a treatment organization and the emphasis on treatment aspects of juvenile court activities have led to a popular assump tion that the court applies a criterion of need in dispensing its services. A traditional legal analysis would suggest the applica tion of a criterion of overt act. Even if we assume that the intention of juvenile court legislation is to apply some criterion of need, the question then becomes one of how needs are demonstrated or measured. A criterion of demonstrated need brings one full circle to a requirement of overt act.