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Articles 1 - 30 of 115
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Aveux Incités Par Les Officiers Chargés De L’Application De La Loi, L’Expérience Des Etats-Unis, Paul Marcus
Aveux Incités Par Les Officiers Chargés De L’Application De La Loi, L’Expérience Des Etats-Unis, Paul Marcus
Faculty Publications
No abstract provided.
Fiduciary Duties Of Officers And Directors Of Distressed Corporations, Royce De R. Barondes
Fiduciary Duties Of Officers And Directors Of Distressed Corporations, Royce De R. Barondes
Faculty Publications
This Article argues that this widely-accepted premise for analyzing the incentives created by various alternative structures of federal bankruptcy law is suspect.
Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells
Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells
Faculty Publications
Part I of this article briefly reviews the legal and social context of Dennis and Yates. Parts II and III similarly review Madsen and Schenck in order to show potential parallels to the earlier communist decisions. Part IV further examines both Madsen and Schenck, demonstrating that, from a doctrinal standpoint, they are far removed from the earlier communist cases. Finally, Part V explains how the Court in Madsen and Schenck actually contributed to misconceptions or manipulation of its opinions. Specifically, Part V examines the Madsen and Schenck Courts' approaches to three of the more difficult doctrinal issues facing them--prior restraint, …
Mortgage Drafting: Lessons From The Restatement Of Mortgages, Dale A. Whitman
Mortgage Drafting: Lessons From The Restatement Of Mortgages, Dale A. Whitman
Faculty Publications
The American Law Institute's adoption of the Restatement (Third) of Property: Mortgages may have significant impact on the negotiation and drafting of mortgages. Rather than merely reciting the prevailing case law, the Restatement proposes approaches the American Law Institute believes are desirable as a matter of sound policy. This Article highlights key areas in which the new Restatement may affect mortgage drafting and suggests useful techniques for mortgage drafters.
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
Faculty Publications
This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.
The Right Mix, Richard C. Reuben
The Right Mix, Richard C. Reuben
Faculty Publications
This edition of Dispute Resolution Magazine explores several aspects of the problem. It begins with a debate between Jean Sternlight and Theodore 0. Rogers over the propriety of mandatory predispute arbitration processes in the consumer and employment contexts, followed by a proposal by Terry Trantina for a "constructive compromise" regarding the general validity of arbitration agreements in contracts of adhesion.
This trio of essays is followed by articles on two major arbitration reform efforts. The first, by Thomas J. Stipanowich and J. Clark Kelso, discusses the rise of protocols and other industry standards intended to bring fairness to the arbitratica …
The Value Of Narrative In Legal Scholarship And Teaching, Jean C. Love
The Value Of Narrative In Legal Scholarship And Teaching, Jean C. Love
Faculty Publications
Storytelling-particularly storytelling written from an "outsider's" perspective-is a new form of legal writing that appears with increasing frequency on the pages of law reviews and specialized legal journals. At the same time, critics are questioning whether storytelling deserves to be classified as a form of legal scholarship. Perhaps storytellers are to be regarded as talented and creative writers, but do they truly deserve to be called legal scholars? At first, the debate was local, arising in the context of the deliberations of appointments committees and tenure committees. Now the debate is national, and it is being conducted on the pages …
The Challenge Of Prosecuting Organized Crime In The United States: Procedural Issues, Paul Marcus
The Challenge Of Prosecuting Organized Crime In The United States: Procedural Issues, Paul Marcus
Faculty Publications
No abstract provided.
Book Review Of Forced Justice: School Desegregation And The Law And Race Relations Litigation In An Age Of Complexity, Davison M. Douglas
Book Review Of Forced Justice: School Desegregation And The Law And Race Relations Litigation In An Age Of Complexity, Davison M. Douglas
Faculty Publications
No abstract provided.
Of Sinking And Escalating: A (Somewhat) New Look At Stare Decisis, Rafael Gely
Of Sinking And Escalating: A (Somewhat) New Look At Stare Decisis, Rafael Gely
Faculty Publications
This article explores the concept of stare decisis from the escalation of commitment perspective. I argue that the theory of escalation of commitment provides a powerful tool that can be used in our understanding of the application of stare decisis . The literature on the use of precedent is extensive; however, this Article develops a new way of looking at case law development and stare decisis . In particular, the Article contemplates stare decisis as a decision-making process and then considers the academic literature in order that we may gain some insight into that process.
Commercial Codification As Negotiation, Peter A. Alces, David Frisch
Commercial Codification As Negotiation, Peter A. Alces, David Frisch
Faculty Publications
No abstract provided.
Justice Blackmun, Franz Kafka, And Capital Punishment, Martha Dragich
Justice Blackmun, Franz Kafka, And Capital Punishment, Martha Dragich
Faculty Publications
The Article discusses the problem of judging death penalty cases, comparing Justice Blackmun's death penalty jurisprudence to the struggle of a character in Kafka's story. It focuses on three critical moments in the decisional process--hesitation, decision, and escape--and assesses Justice Blackmun's performance at each step. It concludes that although Justice Blackmun's views remained consistent throughout his judicial career, his death penalty legacy is equivocal, and in some important respects, unsatisfying.
Researching Cases On The Web, Douglas E. Abrams
Researching Cases On The Web, Douglas E. Abrams
Faculty Publications
No abstract provided.
Where's Dolan? Exactions Law In 1998, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata
Where's Dolan? Exactions Law In 1998, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata
Faculty Publications
No abstract provided.
Tribute To Professor Richard B. Tyler, William B. Fisch
Tribute To Professor Richard B. Tyler, William B. Fisch
Faculty Publications
Tribute to Professor Richard B. Tyler
Understanding Congressional Reform: Lessons From The Seventies, Rafael Gely, Asghar Zardkoohi
Understanding Congressional Reform: Lessons From The Seventies, Rafael Gely, Asghar Zardkoohi
Faculty Publications
The purpose of this article is to examine voting behavior of representatives when faced with dual constraints (constituents back home and the leadership) as compared to one constraint (constituents back home). An ambitious goal of the study would have been to examine the effects of both sets of reforms. However, there are two reasons for not using the 1995 reforms in our empirical examinations. First, not enough time has passed to fully observe the effect of term limits on voting behavior. Second, and more importantly, the leadership, whose power it was to impose a constraint on a representative's promotional opportunities, …
Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande
Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande
Faculty Publications
To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.
Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman Iii
Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman Iii
Faculty Publications
This Article has three objectives. First, it attempts to rethink the sentencing of federal economic criminals in light of the basic purposes of sentencing and of the Guidelines' particular structure and objectives. Second, it examines the deficiencies in the current sentencing guidelines regarding theft, fraud, and other economic crimes, and the problem areas in the case law construing those guidelines. Third, it proposes and analyzes a consolidated guideline, together with accompanying application notes, for sentencing virtually all theft and fraud cases (a draft of which follows the text of this Article as Appendix A).
Writing In The Legal Academy: A Dangerous Supplement, Lisa A. Eichhorn
Writing In The Legal Academy: A Dangerous Supplement, Lisa A. Eichhorn
Faculty Publications
This article explores the relationship of writing and speech in the legal academy through the lens of an ancient, embedded hierarchy that favors speech over writing. The article borrows the philosophical notion of the "dangerous supplement" to describe the role of writing in this hierarchy and argues that law schools have long seen only one aspect of this role, viewing writing as a "dangerous" curricular supplement, but failing to see why it is necessary to the existence of the remainder of the curriculum. This article examines the lurking distrust that surrounds writing in the legal academy. Part I of this …
Quo Vadis, Posadas?, William W. Van Alstyne
Quo Vadis, Posadas?, William W. Van Alstyne
Faculty Publications
No abstract provided.
Adoption Of Children In Missouri, Mary M. Beck
Adoption Of Children In Missouri, Mary M. Beck
Faculty Publications
The purpose of this Article is to investigate the effect of Missouri law on adoption and to determine whether its provisions adequately protect the parties to adoption and whether its degree of clarity properly forestalls litigation.
The Legal Profession And Its Future: Recapturing The Ideal Of The Statesman-Lawyer, Timothy J. Sullivan
The Legal Profession And Its Future: Recapturing The Ideal Of The Statesman-Lawyer, Timothy J. Sullivan
Faculty Publications
No abstract provided.
Justifying Racial Reform, Davison M. Douglas
Justifying Racial Reform, Davison M. Douglas
Faculty Publications
No abstract provided.
Toward A Practical Estate-Tax Exclusion For Family-Run Businesses: Analysis Of Section 2033a And Proposal For Reform, Eric D. Chason, Robert T. Danforth
Toward A Practical Estate-Tax Exclusion For Family-Run Businesses: Analysis Of Section 2033a And Proposal For Reform, Eric D. Chason, Robert T. Danforth
Faculty Publications
In a previous work appearing in this Journal, the authors proposed an approach to estate and gift taxation that encourages productive behavior by the recipients of wealth. In this Article, the authors analyze, in the context of their earlier work, the new estate-tax exclusion for closely held businesses (section 2033A) created by the Taxpayer Relief Act of 1997. The authors describe the features of a practical family-run business exclusion and conclude that section 2033A, in its present form, fails as a practical exclusion. The authors catalogue those elements of section 2033A that should be retained and propose reforms of those …
Institutional Analysis And Physicians' Rights After Vacco V. Quill, Larry I. Palmer
Institutional Analysis And Physicians' Rights After Vacco V. Quill, Larry I. Palmer
Faculty Publications
No abstract provided.
Chancellor Kent And The Search For The Elements Of Impeachable Offenses, Michael J. Gerhardt
Chancellor Kent And The Search For The Elements Of Impeachable Offenses, Michael J. Gerhardt
Faculty Publications
No abstract provided.
The Alien-Citizen Paradox And Other Consequences Of U.S. Colonialism, Ediberto Román
The Alien-Citizen Paradox And Other Consequences Of U.S. Colonialism, Ediberto Román
Faculty Publications
This Article examines the United States' 100-year-old failed promise. In addition to detailing the unequal citizenship status of the people of Puerto Rico, this Article examines the role that racial and ethnic-based prejudice has played in this issue. 34 Essentially, this Article seeks to compare the traditional legal and political rhetoric of American inclusiveness and the virtues of U.S. citizenship to the reality of colonialism and the impact white supremacy has had on U.S. colonial history. By addressing the subordinated status of "aliencitizens," this Article illustrates the incompatibility of equality under colonialism. As Congress addresses the question of Puerto Rico's …
Does The Fda Have Authority To Regulate Human Cloning?, Elizabeth Price Foley, Elizabeth C. Price
Does The Fda Have Authority To Regulate Human Cloning?, Elizabeth Price Foley, Elizabeth C. Price
Faculty Publications
Examines the FDA's statutory authority to regulate human cloning.
The Evolution Of Health Care Decision Making: The Political Paradigm And Beyond, Elizabeth Price Foley, Elizabeth C. Price
The Evolution Of Health Care Decision Making: The Political Paradigm And Beyond, Elizabeth Price Foley, Elizabeth C. Price
Faculty Publications
The ascendancy of the political paradigm as the primary mode of health care decision-making is a natural evolutionary reaction to the unrestrained market paradigm. Although a certain of political intrusion into the health care marketplace is both necessary and useful, it has the potential to unravel the efficiencies achieved by managed care. Overzealous intervention in the health care market in the name of "reform" may cause the health care decision-making pendulum to swing back to the provider paradigm, with its tendency to escalate health care costs and diminish access. One possible way to achieve decision-making equilibrium and and end the …
The Role Of State Government In Nuclear Power Regulation: Jurisdictional Conflicts In The Us, Donald N. Zillman
The Role Of State Government In Nuclear Power Regulation: Jurisdictional Conflicts In The Us, Donald N. Zillman
Faculty Publications
The regulation of nuclear power in the United States provides ample opportunity for conflicts over jurisdiction. The Maine Yankee case demonstrates the complications that arise as a result. The article concludes, however, that state involvement in the federal process can be both useful and collaborative.