Law Commons^™

On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley

Scholarly Works

As a general rule, extrinsic evidence, whether written or oral, is not admissible to prove either the intent of the parties to a contract or the meaning of contractual terms when the parties have executed an unambiguous, fully-integrated (i.e., final and all-inclusive) written agreement. The trial court may consider various types of extrinsic evidence, however, in determining whether a particular agreement is fully integrated or ambiguous, and even in choosing among rival interpretations of an agreement where ambiguity is not present. If the trial court determines that an agreement is not fully integrated, then the trier of fact may consider …

Scientific Testing & Proof Of Paternity: Some Controversy And Key Issues For Family Law Counsel, Christopher L. Blakesley

Scholarly Works

Blood and tissue testing, especially DNA matching, have become important elements of both criminal and paternity or maternity litigation. Such scientific testing has become so important that it has taken on aspects that may cause it to benefit or to do harm to the judicial process or to any given case. This article focuses on the value and the dangers surrounding this interesting subject.

The 1995 Louisiana Supreme Court decision in Pace v. State reemphasized the importance of DNA testing generally and the significance of blood and tissue genetic testing used to exclude paternity. The advances in and importance of …

The Bylaw Battlefield: Can Institutions Change The Outcome Of Corporate Control Contests?, John C. Coffee Jr.

Faculty Scholarship

What, if anything, can institutional investors do to influence the course and outcome of corporate control contests? The traditional answer was relatively little. To be sure, institutions could tender their shares in a tender offer or vote in a proxy contest to oust the incumbent board, but such a role was essentially reactive and contingent. It required that an offer actually be made before institutions could respond on an after-the-fact basis. Similarly, institutions have occasionally conducted precatory proxy campaigns calling upon the board to redeem its poison pill, but management was free to ignore these requests (and has done so).

The Federal Sentencing Guidelines Ten Years Later: An Introduction And Comments, Paul H. Robinson

All Faculty Scholarship

No abstract provided.

Saints And Sinners: How Does Delaware Corporate Law Work?, Edward B. Rock

All Faculty Scholarship

No abstract provided.

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

All Faculty Scholarship

Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during …

Making Constitutional Doctrine In A Realist Age, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand …

Contemplating The End Of Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

In continuation of the series of essays analyzing and documenting federal civil justice reform, this essay first provides an update on developments in civil justice reform nationally and in the United States District Court of Montana (Montana District). The essay then stresses the continuing work of the Ninth Circuit District Local Rules Review Committee and additional issues relating to case assignments in the Montana District. Finally, the essay takes a glimpse into the future.

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.

Dear President Clinton, Carl W. Tobias

Law Faculty Publications

Professor Tobias offers advice on judicial selection philosophy for the newly reelected President Bill Clinton.

Magistrate Judges In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

Over the last three decades, growing caseloads and finite resources have fostered expansion of the jurisdiction, responsibilities, prestige and compensation of United States Magistrate Judges. Passage of the Civil Justice Reform Act (CJRA) of 1990, which required local experimentation with procedures for reducing expense and delay in civil litigation, propelled this development in many of the ninety-four federal districts across the country. The United States District Court for the District of Montana has quite strongly evidenced these phenomena. Perhaps most important, the CJRA expense and delay reduction plan that the district prescribed in 1991 included an opt-out procedure which it …

Suggestions For Studying The Federal Appellate System, Carl W. Tobias

Law Faculty Publications

The United States Congress recently authorized the appointment of a Commission on Structural Alternatives for the Federal Courts of Appeals. That entity has an historic opportunity to analyze carefully the federal appellate system and make valuable suggestions for improvement, thereby charting the destiny of the intermediate appeals courts for the twenty-first century. The creation of this new commission is important because now is a critical time for the appellate courts. All twelve regional circuits have experienced exponential docket growth but have possessed insufficient resources to treat the cases: this crisis of volume now seriously threatens the system.

This Article initially …

Comment On Burbank And Silberman, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Right To Talk: Has Justice Antonin Scalia Compromised His Objectivity With A Public Remark?, Lloyd B. Snyder

Law Faculty Articles and Essays

With two assisted suicide cases scheduled for argument before the Supreme Court this term, Justice Antonin Scalia already has publicly staked out his position on the issue. While sentiments he expressed in 1990 in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, are well-known, Scalia told an audience at Catholic University late last year that it is "absolutely plain there is no [constitutional] right to die." Is it proper for sitting judges to make such statements? While no one would deny Scalia his First Amendment right to say what he pleases, that hardly quells concerns about the advisability …

What Is Eleventh Amendment Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's Eleventh Amendment decisions give conflicting signals about what the Amendment does. On one view, the Amendment functions as a forum-allocation principle--immunizing states from liability in suits filed in federal court, but leaving open the possibility that states may be compelled to entertain suits against themselves in their own courts. A separate line of cases, however, implies that state courts enjoy an immunity from suit in their own courts and that nothing in the Constitution withdraws such immunity; on this view, the Eleventh Amendment, by protecting the states from suit in the federal courts, effectively immunizes the states …

What Price Peace: From Nuremberg To Bosnia To The Nobel Peace Prize, Malvina Halberstam

Faculty Articles

No abstract provided.

A Critique Of The Yugoslavia War Crimes Tribunal In Report Of The International Law Association On An International Criminal Court, Michael P. Scharf

Faculty Publications

It is ironic that history has not been altogether kind to the Nuremberg Tribunal, labeling it "victor's justice," denouncing its application of ex post facto law, and rebuking its procedural shortcomings. Fifty years later, the world community has created another war crimes tribunal - the International Criminal Tribunal for the Former Yugoslavia. In its first annual report, this new Tribunal stated that "one can discern in the statute and the rules a conscious effort to avoid some of the often-mentioned flaws of Nuremberg and Tokyo." Because it will serve as the model for future ad hoc tribunals and a permanent …

The Evolution Of Adolescence: A Developmental Perspective On Juvenile Justice Reform, Elizabeth S. Scott, Thomas Grisso

Faculty Scholarship

The legal response to juvenile crime is undergoing revolutionary change, and its ultimate shape is uncertain. The traditional juvenile court, grounded in optimism about the potential for rehabilitation of young offenders, has long been the target of criticism, and even its defenders have been forced to acknowledge that it has failed to meet its objectives. Beginning in the late 1960s, when the Supreme Court introduced procedural regularity to delinquency proceedings in In re Gault, courts and legislatures began to slowly chip away at the foundations of the juvenile justice system. Recent developments have accelerated and intensified that process, as …

Critical Applications And Proposals For Improvement Of The Uniform Interstate Family Support Act And The Full Faith And Credit For Child Support Orders Act, Patricia W. Moore

Faculty Articles

The problems inherent in interstate child and spousal support enforcement have been lamented for at least a half century. The federal and state governments have taken numerous steps to enhance interstate establishment and collection of support. Two of the latest steps in this process were the 1992 promulgation of the Uniform Interstate Family Support Act ("UIFSA") and the 1994 adoption of the federal Full Faith and Credit For Child Support Orders Act ("FFCCSOA"). The 1996 federal "welfare reform" bill' affected both of these statutes by requiring the states to pass UIFSA by January 1, 1998 and by amending FFCCSOA …

Jaffee V. Redmond: Towards Recognition Of A Federal Counselor-Battered Woman Privilege, Fernando Laguarda, Michael B. Bressman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.

Congressional Self-Discipline: The Constitutionality Of Supermajority Rules, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Congress needs to be more disciplined. It has at times become sloppy and even cavalier. When, for example, Congress enacted the federal Gun-Free School Zone Act of 1990, it was asking for trouble. Neither the legislation nor the legislative history said anything about any effect on interstate commerce. It was therefore not surprising to see the Supreme Court strike the law down in United States v. Lopez.