Introduction
CONTRACT: NOT PROMISE
Michael G. Pratt
In order to form a contract at least one of the parties to the bargain must give an undertaking or commitment of the appropriate kind to the other; that is, he or she must perform a commissive speech act of the right kind. It is widely held that the act in question is not a technical or distinctly legal speech act, but rather the same prosaic act of promising that is the subject of the everyday moral practice we learn about as children. Indeed, it is standard textbook fare that a contract is a promise (or an exchange of promises) that the law will enforce. In this Essay I argue that this orthodoxy is mistaken: the commissive speech act by means of which a contract is formed is not the same speech act as that by means of which we voluntarily undertake moral obligations to others.
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DEMOCRATIZING THE MEDIA
Emily Berman
The concept of intervention in the internal affairs of a sovereign state is a controversial one, and it is a project the international community is loath to take on. But once a decision to intervene has been made, the controversy is usually at an end. In most instances, the goals of such an intervention are clear: bring a halt to violence and humanitarian violations, preserve peace, and facilitate the (re)building and (re)establishment of a liberal democratic political system. In other words, once the United Nations (UN) Security Council or other intergovernmental organization has decided to deploy a peacekeeping mission or a peace agreement is brokered among warring parties, the high-profile political negotiations and rhetoric usually die down.
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DAMMING WATTERS: CHANNELING THE POWER OF FEDERAL PREEMPTION OF STATE CONSUMER
Elizabeth R. Schiltz
In April 2007, while adjudicating a dispute between Wachovia Bank and Michigan’s Commissioner of Insurance and Financial Services, the United States Supreme Court effectively reversed two presumptions about federal preemption of state law that historically have guided the delicate balance between state and federal authority over consumer protection in banking services. The first presumption is that issues involving consumer protection are “quintessentially” matters of state (rather than federal) prerogative and are thus governed by state law unless specifically preempted by Congress. The second presumption is that national banks are subject to “nondiscriminatory laws of general application” of the states where they are located, provided that those laws “do not ‘forbid’ or ‘impair significantly’ national bank activities.” In Watters v. Wachovia, the first presumption was entirely negated, and the second presumption was essentially reversed. After Watters, consumer protection in banking services can no longer be considered to be primarily the province of state legislatures. Furthermore, national banks can be presumed not to be subject to any state law that hinders the efficient exercise of any of the banks’ powers.
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DEAF PATIENTS, DOCTORS, AND THE LAW: COMPELLING A CONVERSATION ABOUT COMMUNICATION
Michael A. Schwartz
Title III of the Americans with Disabilities Act (ADA) grants people with disabilities access to public accommodations, including the offices of medical providers, equal to that enjoyed by persons without disabilities. The Department of Justice (DOJ) has unequivocally declared that the law requires effective communication between the medical provider and the Deaf patient. Because most medical providers are not fluent in sign language, the DOJ has recognized that effective communication calls for the use of appropriate auxiliary aids, including sign language interpreters. The final decision on what to offer the Deaf patient is the doctor’s, and under current DOJ regulations, the doctor does not have to consult with the patient or give “primary consideration” to the patient’s choice of auxiliary aid as long as what the doctor offers results in effective communication. However, given the great variation in people’s communication styles and skills, a standard, one-size-fits-all auxiliary aid would fail to achieve effective communication in many cases, harming not only the Deaf patient, but also the medical provider, who would be potentially liable for violating the ADA as well as hamstrung in getting accurate information for purposes of diagnosis and treatment. Moreover, most doctors are not savvy about Deafness and Deaf culture. Thus, the best way to ensure effective communication would be to require the medical provider to ask the Deaf patient for his or her choice of auxiliary aid and to give “primary consideration” to the patient’s expressed choice of auxiliary aid. Such an approach is required under Title II of the ADA, which makes it mandatory for state and local governments to consult with people with disabilities and give “primary consideration” to the patient’s choice of auxiliary aid. Given that there is no difference between a public doctor and a private doctor that would justify the two different approaches and that cost is not a factor, since under either title, a medical provider cannot pass on the costs to the person with a disability, the DOJ should revise its interpretation of Title III in order to bring it into line with its interpretation of Title II. To fail to do so would operate to frustrate both the letter and the spirit of the ADA. Until the DOJ brings the titles into line, the courts should decline to give controlling weight to the DOJ’s interpretation of Title III.
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CACHING IN ON THE GOOGLE BOOKS LIBRARY PROJECT: A NOVEL APPROACH TO THE FAIR USE DEFENSE AND THE DMCA CACHING SAFE HARBORS
Jesse S. Bennett
Imagine a world ruled by computers, where humans are enslaved in tiny pods and used for their body heat and neural activity. In order to achieve submission, the computers use a giant matrix of images from the year 1999 to keep the humans from resisting their restraint, essentially enslaving their thoughts within the confines of the algorithm. Their memories, mixed with the recurring images, assure them that this false reality is actual reality. Fortunately for mankind, a rebellion has begun—a rogue uprising that will hopefully end the tyrannical reign of this algorithmic computer web, known as The Matrix.
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HAS THE INTERACTIVITY OF THE INTERNET OPENED THE DOOR TO TORT LIABILITY? : AN ANALYSIS OF THE POTENTIAL TORT LIABILITY FOR VIRAL VIDEO CONTESTS
Acima Blagg
The popularity of viral videos increased exponentially with the founding of YouTube in 2005.1 Less than a year after its creation, YouTube had over 6.1 million videos and over 1.73 billion views. Home videos are no longer being stored in dusty closets but are being uploaded daily on websites that allow viewers to rate and comment on the content. The Internet has become a venue for human interaction, and entrepreneurs are well aware of the potential for profit. With the growth in popularity of viral video websites, owners are struggling to find new ways to draw the most viewers. As a result, some websites are now sponsoring viral video contests with cash prizes as high as $10,000.4 The content of these videos ranges from the comedic to the extremely dangerous, and in the nature of the competition, entrants have recognized that the more extreme a video is, the more likely it will win a contest. Thus, in the tradition of MTV’s Jackass, one can now find numerous videos of adolescents self imposing injury and attempting to perform dangerous stunts like jumping over moving cars.
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