Digital Commons Network^™

Thoughts About Pursuing Diversity In Legal Education For Pedagogical Rather Than Political Or Compensatory Reasons, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle

Faculty Scholarship

Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.' Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and …

Real Property: 1993 Survey Of Florida Law, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival

Faculty Scholarship

Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the merits …

Doctrine Or Dictum: The Ker-Frisbie Doctrine And Official Abductions Which Breach International Law, Aaron Schwabach, S. A. Patchett

Faculty Scholarship

No abstract provided.

Just The Facts, Ma'am: Lying And The Omission Of Exculpatory Evidence In Police Reports,, Stanley Z. Fisher

Faculty Scholarship

George Jones's ordeal was the product of, and in turn sheds light upon, police practices of investigating crimes and writing reports. Written police reports of criminal incidents and arrests give details such as the time, place, and nature of criminal conduct; the names and addresses of victims and witnesses; physical characteristics of the perpetrator(s) or arrestee(s); weapons used; property taken, recovered, or seized from the arrestee; and injuries to persons and property. Through their reports, the police "have fundamental control over the construction of [the] 'facts' for a case, and all other actors (the prosecutor, the judge, the defense lawyer) …

A Model Of Products Liability Reform, Anita Bernstein

Faculty Scholarship

No abstract provided.

A Practical Guide To Recent Developments In Federal Habeas Corpus For Practicing Attorneys, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Preempting Justice Through Binding Arbitration Of Future Disputes: Mere Adhesion Contracts Or A Trap For The Unwary Consumer, Michael Z. Green

Faculty Scholarship

When individual consumers with little or no bargaining power have not consented to particular contractual terms, the use of the courts and judicial interpretations may be the only way to promote justice and allow consumers to protect themselves. Unfortunately, the trend, as established in recent United States Supreme Court decisions, is to apply the deferential standards of enforcement from commercial transactions to situations involving adhesion contracts between an individual consumer and a business entity where equal bargaining power is clearly lacking.

Perhaps the most pervasive example of this trend has been the Supreme Court's zealous enforcement of arbitration clauses under …

Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon

Faculty Scholarship

Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

When Courts Refuse To Frame The Law And Others Frame It To Their Will, Susan P. Koniak

Faculty Scholarship

In the aftermath of Kaye, Scholer, Fierman, Hays & Handler's settlement with the government,¹ two versions of the story have emerged. The most popular version features the government actors as villains-villains with new and lethal weapons at their disposal, willing to enforce law that has leapt full grown from their heads like Zeus' child, law of which the rest of the civilized world was unaware. The counterstory, less often told but not without adherents, casts the lawyers of Kaye, Scholer as the villains: unscrupulous and greedy lawyers ready to break any rule, defile any process, twist any truth on …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Faculty Scholarship

The first part of this Comment will present the historical and theological views towards suicide. This background material will be helpful in understanding present-day society's response to the assisted suicide debate by tracing many of the condemnations back through common law development. The second portion of this Comment will focus on the current status of the assisted suicide debate. Although most courts have passed on the issue" and most legislatures do not have laws addressing assisted suicide, there is a great deal of activity shaping the legal future of this topic. This section emphasizes the importance of key nonlegal players …

Symposium On Securities Law Enforcement Priorities, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Extending The Guiding Lefthand Of Counsel: The Minnesota Supreme Court Provides Protection Against Uncounseled Waivers Of The Right To Counsel During Interrogations, Edwin J. Butterfoss, Lisa J. Burkett

Faculty Scholarship

It is the thesis of this Article that the cases on which the Minnesota Supreme Court in Lefthand relied and the policy concerns that motivated the court suggest that the rule of Lefthand should apply to any suspect who has asserted her right to counsel, regardless of whether that suspect is in custody, formally charged, or formally represented by counsel. If the court's ruling in Lefthand is carried to its logical scope, law enforcement officers and prosecutors in Minnesota may find that very early in the criminal justice process they are precluded from obtaining waivers of the right to counsel …

R. V. Parks: Automatism And Murder, Laura Spitz, Isabel Grant

Faculty Scholarship

In R. v. Parks' the Supreme Court of Canada had the opportunity to clarify the test for distinguishing between insane and non-insane automatism and to locate sleep-walking, or somnambulism, within this dichotomy. Its judgments accomplished neither purpose satisfactorily and thus the case is more striking for its unusual facts than for its advancement of the law. The question before the Supreme Court of Canada was simple: was Parks entitled to an absolute acquittal on the basis that his acts were involuntary, or was the involuntariness caused by a disease of the mind, thus leaving him only with the defence of …

Did The First Justice Harlan Have A Black Brother?, James W. Gordon

Faculty Scholarship

This Article summarizes the careers of James, John, and Robert Harlan. It then examines the evidence of the blood relationship between Robert Harlan and James Harlan, and speculates on the influence that John Harlan's contact with Robert Harlan might have had in shaping John's views on race. Finally, the Article reflects on the implications of the careers of John and Robert Harlan for our understanding of race in late nineteenth century America.

Charity Begins At Home: Alternatives In Nonprofit Regulation, Jon M. Garon

Faculty Scholarship

No abstract provided.

The Impact Of The European Community On Labor Law: Some American Comparisons, Marley S. Weiss

Faculty Scholarship

No abstract provided.

Federal Court Abstention And State Administrative Law From Burford To Ankenbrandt: Fifty Years Of Judicial Federalism Under Burford V. Sun Oil Co. And Kindred Doctrines, Gordon G. Young

Faculty Scholarship

No abstract provided.

The Saga Of Wiretapping In France: What It Tells Us About The French Criminal Justice System, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

Teach Your Students Well: Valuing Clients In The Law School Clinic., Ann Juergens

Faculty Scholarship

Law schools, teaching primarily by the casebook method, generally avoid the thorny issues that real clients pose.' Recently, however, law review articles and the ""regular classroom"" have referred more frequently to real client stories. Law school clinics are a primary source of client stories. Despite increased attention to clinical programs, client interests are frequently subordinated to the goals of students, clinical law teachers and law schools. This article urges clinicians to constantly evaluate whether and how well they and their students take their clients' interests and perspectives on clinical education into account. It argues that clinic teachers must learn to …

"Skilling" Time, Peter B. Knapp

Faculty Scholarship

This article describes disagreements about the "MacCrate Report" on skills education for law students, as well as the connections between the Report's recommendations and legal education at William Mitchell College of Law. The final commentary focuses on what William Mitchell can do to further ensure that teaching prepares students for the learning they will have to do when they begin working as lawyers.

Efficiency And Labor Law, Keith N. Hylton

Faculty Scholarship

In this Article, I examine the economic efficiency of labor law. My claim is that much of labor law seems to be efficient-in a sense that will be made precise below.⁹ I approach this issue by examining the process by which labor law develops and some important areas of labor law doctrine. The central question addressed is whether the process by which labor law develops differs substantially from the common law process. I demonstrate that there are differences that have implications for the efficiency of labor law. But the differences do not seem to be so great as to …

Notes From California: Rodney King And The Race Question, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

The Reception Of Canon Law And Civil Law In The Common Law Courts Before 1600, David J. Seipp

Faculty Scholarship

English common law practitioners and judges borrowed much of the conc structure for their body of legal knowledge from the legal culture of continen Europe over the centuries. Their surviving writings show a marked increa the use of Roman legal classifications in the century before 1600: public private, criminal and civil, real and personal, property and possession, con and delict, among other examples. Those who perpetuated the learning of English royal courts in the sixteenth century had begun fitting it in framework borrowed from the two great bodies of 'learned law' taught in universities of Europe: civil (Roman) law and …

Civil Forfeiture: A Higher Form Of Commercial Law?, Steven L. Schwarcz, Alan E. Rothman

Faculty Scholarship

In this Article, Messrs. Schwarcz and Rothman analyze the disquieting impact of civil forfeiture law on creditors' rights. The Article begins by describing the historical origins of civil forfeiture and its development into current day law. The Article then explores the tension between forfeiture law and commercial and bankruptcy law by examining the effect of a forfeiture action on unsecured and undersecured creditors. The Article evaluates a recent model for balancing governmental and commercial law interests, and concludes by suggesting reforms to the present civil forfeiture scheme.

Foreword To An Interview With Fred Korematsu, Larry Yackle

Faculty Scholarship

One afternoon in the spring of 1942, Fred Korematsu was arrested for doing what would have been perfectly innocent and natural for millions of other American citizens, but was for him a criminal offense. He went for a stroll with his fianc6e along a public street in San Leandro, California.' By order of General John L. DeWitt, Americans of Japanese ancestry had been directed to remain in their homes during daylight hours and to ready themselves for transport to "assembly centers," where they would wait out the war.' Korematsu's family had already reported to such a center near San Francisco, …

The Habeas Hagioscope, Larry Yackle

Faculty Scholarship

If you would understand American law, American politics, and the elusive difference between the two, look no further. Federal habeas corpus for state prisoners opens a window on the workings of our national government, overt and covert. I mean in this Article to describe the scene that is revealed. A rich account of experience in recent years can contribute to a deeper understanding of our government by arranging the players and the set in context and sequence. The record will show a number of things to be true.

Constitutional Adventures In Wonderland: Exploring The Debate Between Rules And Standards Through The Looking Glass Of The First Amendment, David L. Faigman

Faculty Scholarship

No abstract provided.