Digital Commons Network^™

Race And The Core Curriculum In Legal Education, Fran Ansley

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No abstract provided.

Can International Law Provide Extra-Constitutional Protection For Excludable Aliens?, Louis B. Sohn

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This paper focuses on the problems of those who do not qualify for a regular admission as refugees, but are detained at the entrance point, or are detained in the United States after being released on temporary parole or pending repatriation. The thesis I shall try to defend is that these persons must be treated according to basic rules of humanitarian law; that they are entitled to be treated as human beings, regardless of any particular legislation or administrative regulations depriving them of basic legal protection granted to citizens and regular residents of the country.

The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw

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No abstract provided.

The Georgia Jury And Negligence: The View From The Bench, R. Perry Sentell Jr.

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It is virtually impossible to think seriously about torts and not think of negligence; it is virtually impossible to think seriously about negligence and not think of the jury. The staples of the common-law negligence system--striking a liability profile, and assessing a causal loss--are the staples of the civil jury province. The historic inevitableness of the fact, however, has never put the matter beyond reflection, scrutiny, reconsideration, challenge, nor controversy. Assuredly, controversy.

A Slave's Marriage: Dowry Or Deposit, Alan Watson

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This articles examines the concept of dowry among marriage of slaves in ancient Rome.

Mindlessness And The Law, Paul J. Heald, James E. Heald

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No less an authority than Milton Friedman has argued that improving the realism of assumptions in economic theory, although hardly essential to establishing the absolute validity of the theory (purely an empirical question), may offer several benefits. First, a “restructuring” (to use Posner's term) of an assumption may help explain divergences between predicted and observed results. Second, an explanation of why a seemingly unrealistic assumption does not destroy the predictive value of a theory may strengthen the theory by connecting it to “a more general theory that applies to a wider variety of phenomena . . . and has failed …

United States Telecommunications Trade Policy: Critique And Suggestions, Glenn Harlan Reynolds

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No abstract provided.

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

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The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells

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Whether there is parity between federal and state courts has become a central question in the law of federal courts, dividing judges and commentators into two well-defined camps. Although the issue rarely arose thirty years ago, it now enters into virtually every discussion of the rules concerning access to federal court for constitutional claims. On one side of the debate, advocates of broad federal jurisdiction over constitutional challenges to state action claim that federal courts are better than state courts at adjudicating these controversies. On the other side, advocates of state court jurisdiction insist that state courts are fully adequate …

Federal Intellectual Property Law And The Economics Of Preemption, Paul J. Heald

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In the Sears/Compco decisions, the United States Supreme Court established that federal patent law preempts state prohibitions on the mere copying of unpatented product configurations. After years of harsh criticism by commentators, apparent rejection by the lower courts, and allegedly inconsistent treatment by the Court itself, most had proclaimed this principle far beyond resuscitation. The Court, however, miraculously resurrected the principle in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., which unanimously reaffirmed that intentional copying often should be privileged under federal law. In so doing, the Court provided an expressly economic rationale to be used in future determinations …

Justice Scalia And The Commerce Clause: Reflections Of A State Tax Lawyer, Walter Hellerstein

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This paper considers Justice Scalia's substantive views of the restraints that the commerce clause imposes on state taxation. My purpose is to examine critically Justice Scalia's dormant or "negative" commerce clause analysis of the state tax issues on which he has opined and to draw from that examination some general conclusions about Justice Scalia's commerce clause jurisprudence.

The Constitutional Case Against Intracircuit Nonacquiescence, Dan T. Coenen

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A cornerstone of the United States Constitution is its separation of powers among the legislative, executive, and judicial branches of the national government. The Framers of the Constitution reasoned that separated powers would guard against tyranny by blocking the undue concentration of authority in any single governmental department. In crafting the Constitution, however, the Framers could not anticipate every dispute their scheme of separated powers might engender. One modern separation-of-powers conflict not specifically anticipated by the constitutional text involves so-called "intracircuit nonacquiescence.”

Intracircuit nonacquiescence occurs when executive-branch decision makers refuse to follow a circuit court's precedents even when acting subject …

The Finnigan Case: A Reply To Vogelenzang's Second Stage Apportionment Of Unitary Income, Walter Hellerstein, Jerome R. Hellerstein

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In this article J. Hellerstein and W. Hellerstein take issue with arguments made by Pierre Vogelenzang in a special report in Tax Notes that California’s second-stage apportionment of the income of a unitary business amounts to unconstitutional extraterritorial taxation. In the Finnigan case, the California State Board of Equalization held that sales made into California by a corporation that is not itself taxable in California, but is a member of a unitary group that is taxable there, are includable in the numerator of the state’s sales factor in apportioning income. The authors defend this result, arguing that the separate identity …

Broken Promises Revisited: The Window Of Vulnerability For Surviving Spouses Under Erisa, Camilla E. Watson

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While there are pervasive problems with the current ERISA legislation, this Article will focus only on survivor benefits and will concentrate in particular on the short-term marriage provision. This Article will maintain that facial neutrality notwithstanding, the short-term marriage provision is discriminatory in effect, grounded in dubious logic, and unsupportable from a historical perspective. In order to demonstrate this, this Article will delve thoroughly into the historical development of ERISA, with particular emphasis on the survivor benefit provisions. The depth to which this Article plumbs the general development of ERISA is intended to demonstrate the weak historical foundation on which …

The Role Of Legal Scholars In The Confirmation Hearings For Supreme Court Nominees—Some Reflections, Thomas B. Mcaffee

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Until recently legal scholars have traditionally not been much involved in the process of confirming Justices. As the legal and political ideology of prospective Justices have come to play an important role in the process of nomination and confirmation, however, it is perhaps inevitable that legal scholars would also become more involved. At least since the nomination of Judge Bork, legal scholars have contributed in unprecedented numbers both to the Senate's deliberation process and to the public debate over the fitness of the nominees to the Court. The Bork hearings themselves were, of course, the watershed, and they remain, for …

Immunity From Regulatory Price Squeeze Claims: From Keogh, Parker, And Noerr To Town Of Concord And Beyond, Keith A. Rowley

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On September 21, 1990, the First Circuit handed down its decision in Town of Concord, Massachusetts v. Boston Edison Co. This case, the most recent in a growing line of court of appeals decisions examining the antitrust implications of public utility rate structures, represents the first time a United States court of appeals has unequivocally stated that an antitrust action based upon a “price squeeze” could not be maintained against a utility whose wholesale and retail rates were both fully regulated. Town of Concord notwithstanding, the courts are far from agreeing whether investor-owned electric or natural gas utilities are immune …

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

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No abstract provided.

Teaching Students How To "Think Like Lawyers": Integrating Socratic Method With The Writing Process, Mary Beth Beazley, Mary Kate Kearney

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Professor Beazley begins this article with an overview of how Socratic method and the writing process have traditionally been used and how they can be integrated in the legal writing course. The remainder of the article is devoted to an analysis of how this integration can be achieved in a five-step structured dialogue. She and her co-author identified these five steps as: (1) the assignment, or "instigating question"; (2) the student's written answer, in a series of "focused drafts" with "private memos"; (3) the teacher's written response, using Socratic questions whenever possible; (4) the conference, where the teacher can use …

Reactions To Opression: Jurisgenesis In The Jurispathic State, John Valery White

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This Note offers a model for analyzing the political and legal traditions of oppressed communities and developing a jurisprudence that accurately reflects the communities' views. Under this model, each of these diverse views can be understood from one of four perspectives: parochialism, fatalism, neo-liberalism, and individualism. These four perspectives are defined by an oppressed community's members' aspirations for liberation. Different ideals of justice and liberation underlie each perspective. Though touching on some of the communities' sentiments, the examinations of scholars of color have thus far been largely piecemeal, overemphasizing certain views, unwittingly combining divergent views, or marginalizing and dismissing unpopular …

Authoritarianism And The Rule Of Law, Lynne Henderson

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No abstract provided.

Law's Patriarchy, Lynne Henderson

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No abstract provided.

A Better Approach To Arbitrability, Jeffrey W. Stempel

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Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …

Introduction To Greek Law, Christopher L. Blakesley

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Greek Law, developed under the stewardship of Professor Konstantinos Kerameus, takes on his character, being a solid, careful work of first rate scholarship. It presents the Greek legal system, the substance of each part of its civil public and penal law and procedure, in a series of well-written and insightful chapters by many of the best Greek scholars (in the United States and in Greece) on each subject. The book is important, because Greece is in the Common Market and Council of Europe, and because the continental and even the common law systems owe their development to the Ro- man-Byzantine …

International Law Principles Governing The Extraterritorial Application Of Criminal Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on the differences and similarities between Germany and the United States on international principles of jurisdiction over extraterritorial crime.

International Year In Review: Developments In International Criminal Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on recent developments in International Criminal Law.

Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Marjorie A. Silver

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Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that the first amendment values support a judicial …

Transfers Prior To Marriage And The Uniform Probate Code's Redesigned Elective Share - Why The Partnership Is Not Yet Complete, Rena C. Seplowitz

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No abstract provided.

Right-To-Die, Bruce N. Morton

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No abstract provided.

Chaos And The Court, Glenn Harlan Reynolds

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Inspired by Laurence Tribe's "The Curvature of Constitutional Space," this Essay looks at some constitutional theorists' desire for certainty and predictability in law, and notes that such certainty and predictability is much less available even in the hard sciences than is generally believed, with simple and determinate systems sometimes producing wildly unpredictable results. It suggests that predictability of results may be a difficult goal for legal theorists, and offers some thoughts on alternative approaches.

The True Sale Of Loans And The Role Of Recourse, Thomas E. Plank

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No abstract provided.