Digital Commons Network^™

Reconsidering The Corporate Attorney-Client Privilege: A Response To The Compelled-Voluntary Waiver Paradox, Lonnie T. Brown, Jr.

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The Department of Justice (“DOJ”) has adopted guidelines that seem to make waiver of the attorney-client privilege and work product protection a prerequisite for being deemed “cooperative,” a significant designation that carries with it the prospect for more favorable penal treatment. In addition, the United States Sentencing Commission underscored the potential importance of such waivers by approving an amendment to the Federal Sentencing Guidelines in 2004 that, under certain circumstances, makes privilege waiver a factor in assessing a corporation's “culpability score,” which is used in determining the appropriate sentencing range.

This perceived ever-present concern has caused many corporate executives and …

Acquisition Escrows In Tennessee: An Annotated Model Tennessee Acquisition Escrow Agreement, Joan Macleod Heminway

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The coauthors have constructed a model escrow agreement for use in acquisitions, annotated with footnotes on substantive law and legal drafting issues. This model is intended to be used as a research piece, teaching tool, and practitioner resource. This agreement is part of a series of acquisition agreements and related ancillary contracts and instruments published by Transactions: Tennessee Journal of Business Law beginning in 2003.

John Paul Stevens, Human Rights Judge, Diane Marie Amann

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This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

Habeas Corpus And Baseball, Donald E. Wilkes Jr.

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In the late 19th and early 20th centuries playing baseball on Sundays was a criminal offense in many states, where police often aggressively intervened to prevent or stop baseball games from being played on the Sabbath. In 1894, “the police of the city of Brooklyn took it upon themselves to chase, club and lock up all boys and men found playing ball on Sunday,” People ex rel. Poole v. Hesterberg, 43 Misc. 510, 89 N.Y.S. 498, 499 (N.Y. Sup. Ct. Kings County 1904); on two consecutive Sundays in July 1910, two professional baseball teams attempting to play in Chemung County, …

Is There A Bias Against Education In The Jury Selection Process?, Hillel Y. Levin, John W. Emerson

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Herbert Spencer famously said that a jury is “a group of twelve people of average ignorance.” That is not a particularly rosy picture of juror competence, but it presents a far better view than the one held by many -- if not most -- modern commentators. The more common contemporary sentiment was captured by Mark Twain when he wrote, in his inimitable style, “[w]e have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve [people] every day who don't know anything and can't read.” Specifically, …

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

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The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable.

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory …

Judicial Misconduct In Criminal Cases: It’S Not Just The Counsel Who May Be Ineffective And Unprofessional, Richard Klein

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No abstract provided.

Eminent Domain Legislation Post-Kelo: A State Of The States, Patricia E. Salkin

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In Kelo v. City of New London, the U.S. Supreme Court ruled that the use of eminent domain for economic development is a permissible“public use” under the Takings Clause of the Fifth Amendment. The decision proved controversial, as many feared that it would benefit large corporations at the expense of individual homeowners and local communities. Shortly thereafter, numerous states introduced legislation limiting the use of eminent domain.This article surveys those state initiatives that have been signed into law following the Court’s decision in Kelo.

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

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No abstract provided.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

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No abstract provided.

Forming A Tie That Binds: Development Agreements In Georgia And The Need For Legislative Clarity, Michael B. Kent Jr.

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No abstract provided.

God's Bridle: John Calvin's Application Of Natural Law, C. Scott Pryor

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Review of background and application of the notion of natural law by magisterial reformer John Calvin with applications to contemporary utility of that concept.

Harry Potter And The Law, Benjamin H. Barton

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The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings …

Resolving Civilian-Police Complaints In New York City: Reflections On Mediation In The Real World, Raymond W. Patterson

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The Civilian Complaint Review Board mediation program associated with the New York City Police Department appears to be an attractive alternative to the investigative process offered to complainants, offering the possibility of a higher level of satisfaction for both the civilian and the police officer. According to the scheme devised by the agency and the NYPD, cases that meet mediation guidelines should move smoothly from investigations through the approval process, coming to a scheduled mediation in a timely manner. Complaints containing some factor making them inappropriate for mediation should be able to be identified during that approval process, thus ensuring …

Labor’S Fragile Freedom Of Association Post-9/11, Ruben J. Garcia

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The fragility of civil liberties in the United States became evident after the terrible attacks of September 11, 2001 (9/11). Labor's freedom of association, which is the right to form unions, bargain collectively, and engage in concerted activities, is one of the civil liberties at risk in the post-9/11 period. This Article focuses specifically on post-9/11 limitations of labor's freedom of association conducted by the executive branch and the Congress, and the ways that the courts have adjudicated labor rights in the post-9/11 era. Domestic labor law and constitutional rights alone, however, will not stop the collision of security and …

Eliminating Political Maneuvering: A Light In The Tunnel For The Government Attorney-Client Privilege, Patricia E. Salkin, Allyson Phillips

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The long recognized common-law privilege afforded to certain conversations between attorneys and their clients has been the subject of troubling opinions when the lawyer and client are high ranking government officials. In a series of opinions from the 7th, 8th and D.C. Circuit Courts of Appeals, the courts refused to recognize the existence of the attorney-client privilege for the government actors under the circumstances surrounding the cases. However, recent opinions from the 2nd Circuit state that these other courts were simply wrong, setting the stage perhaps, for the U.S. Supreme Court to resolve the issue. Whether this privilege is equally …

Ethical Considerations In Land Use Decision Making: 2006 Annual Review Of Cases And Opinions, Patricia E. Salkin

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This article reviews reported cases and opinions documenting allegations of unethical conduct involved in land use planning and zoning decision making in 2006.

Examining Land Use Planning And Zoning Ethics From A Planner’S Perspective: Lessons For All Stakeholders In The Real Estate Game, Patricia E. Salkin

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This article examines the Code of Ethics and Professional Conduct of the American Institute of Certified Planners (AICP). Only two states, Michigan and New Jersey, license planners as a profession. This makes ability for planners to achieve certification from the AICP important and raises the prominence of the AICP Code of Ethics, since as a condition of membership, each AICP member agrees to abide by the Code.

Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton

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This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive …

The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto

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The Sentencing Reform Act of 1984 provided that the trial court "shall impose a sentence of the kind, and within the range" set forth in the United States Sentencing Guidelines ("Guidelines") issued by the Sentencing Commission. With that one phrase, the Act created a system of guidelines that was binding upon judges, rather than simply advisory. Concerns about excessive disparity and undue leniency in sentencing unquestionably drove the political coalition that passed the Act. It is not clear, however, why Congress believed that mandatory-as opposed to advisory-guidelines were necessary to address those concerns. With the benefit of hindsight, it is …

Lord Mansfield; Judicial Integrity Or Its Lack; Somerset's Case, Alan Watson

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I write this after re-reading Steven M Wise's Though the Heavens May Fall. My argument, if convincing, undermines the basis of the book. Probably the most famous decision in English law is that of Lord Mansfield in Somerset v. Stewart in 1772. It is very short and very dramatic; indeed, it is so rhetorical that much of what is vital is overlooked -- as it was meant to be. Somerset was Stewart's slave in Virginia and was brought to England by his owner. Somerset travelled extensively in the service of his master, to Bristol and Edinburgh, for example. But two …

Justinian's Corpus Iuris Civilis: Oddities Of Legal Development, And Human Civilisation, Alan Watson

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The most momentous event in secular legal history is also perhaps the weirdest: Justinian's compilation, now known as the Corpus Iuris Civilis. Unsurprisingly, scholars have avoided stressing how odd the Corpus Iuris is. The most likely explanation is that it is so highly regarded that they have not noticed. They accept its high reputation, hence for them high quality is a given. This is a theme to which I return and no doubt will continue to return. The Corpus Iuris is so central in history, for understanding how law develops, and is so important today.

Cuno And Congress: An Analysis Of Proposed Federal Legislation Authorizing State Economic Development Incentives, Walter Hellerstein

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If anything is clear about Cuno and the controversy the opinion has spawned, it is that Congress has the last word on the matter. Whether Congress will speak to the issues Cuno has raised is currently an open question, although in one narrow respect Congress already has. Broader legislation, however, has been introduced into Congress as the "Economic Development Act of 2005," and debate over the efficacy and wisdom of this proposal is as intense as the debate over the defensibility of Cuno itself. My purpose here is not to join that debate, although I am already on record as …

Does One Need To Be An International Lawyer To Be An International Environmental Lawyer?, Daniel M. Bodansky

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The question I want to address is whether one can now say that IEL [International Environmental Law] represents a distinct field. Of course, it is a distinct field in the sense that it addresses a distinct set of problems and has developed a wide body of primary rules in response. However, is it a distinct field in the stronger sense of having its own characteristic methodologies and techniques?

Staffing For Law School Computing Services, Second Edition, Ann Puckett

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Report summarizing survey responses from 158 of 191 law schools, reporting on fundamental questions pertaining to computing services within the law school.

Federal Constitutional Restraints On Tax Competition Among The American States, Walter Hellerstein

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This article examines the judicially developed rules limiting interstate tax competition in the United States and the constitutional framework out of which they arise.

Foreword: Why Open Access To Scholarship Matters, Joe Miller

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On March 10, 2006, the Lewis & Clark Law Review sponsored a day-long symposium entitled Open Access Publishing and the Future of Legal Scholarship. That gathering led to eight papers that are forthcoming in Volume 10, Issue No. 4, of the Lewis & Clark Law Review. In this short Foreword, I offer some thoughts about why all law professors should take an interest in the movement promoting open access to scholarship. The principal reason, based in current circumstances, is the way that using an open access platform extends one's reach. The aspirational reason is that open access platforms enable us …

The Effect Of Forum Selection Clauses On District Courts’ Authority To Compel Arbitration, Thomas V. Burch, John W. Hinchey

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This is a short piece written for the AAA's Dispute Resolution Journal on two competing provisions in Section 4 of the FAA. One provision tells district courts to compel arbitration in accordance with the parties' agreement, including any forum selection clause. The other says that the court can compel arbitration only within its own territory. This, of course, creates a problem when the forum selection clause calls for arbitration in another jurisdiction. This short article addresses the conflict, showing how courts tend to rule on the issue (as of 2006).

States Beginning To Recognize That Training Is Essential For Members Of Planning And Zoning Boards And Local Legislative Bodies, Patricia E. Salkin

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Members of planning and zoning boards and local legislative bodies constantly make decisions that may be worth millions of dollars to applicants and that may have serious impacts on public health and safety. Unlike other players in the land use decision making process members of local legislative bodies and land use boards have no specific education or training in land use matters prior to their election or appointment putting them in the position to learn solely from “on the job training”. Five (5) states currently require mandatory training and continuing education courses for members of planning boards and zoning boards …

Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, And Hierarchy, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper contends that popular representations of heterosexual black men are bipolar. Those images alternate between a Bad Black Man who is crime-prone and hypersexual and a Good Black Man who distances himself from blackness and associates with white norms. The threat of the Bad Black Man label provides heterosexual black men with an assimilationist incentive to perform our identities consistent with the Good Black Man image.

The reason for bipolar black masculinity is that it helps resolve the white mainstream's post-civil rights anxiety. That anxiety results from the conflict between the nation's relatively recent …