Law Commons^™

Arbitrability In Recent Federal Civil Rights Legislation: The Need For Amendment, Douglas E. Abrams

Faculty Publications

This Article discusses the shortcomings inherent in the consideration and enactment of the arbitrability provisions of the ADA and the 1991 Civil Rights Act. As a threshold matter, Part II demonstrates that the latter Act's textual encouragement of arbitration indicates that Congress misapprehended the effect of Gilmer, which the Supreme Court had decided barely six months before the Act's passage. Specifically, this Part will argue that after Gilmer, textual encouragement of arbitration has little or no greater legal significance than textual silence would have. In the few decades before the decision, textual encouragement would have had significant impact because particular …

Criminal Discovery In Oklahoma: A Call For Legislative Action, Rodney J. Uphoff

Faculty Publications

This article first explores the Allen decision and the extent to which Allen changed the law of criminal discovery in Oklahoma. Next, the article examines some of the theoretical and practical problems with the Allen procedures as well as the efforts of the Oklahoma Court of Criminal Appeals to address some of the troublesome questions generated by Allen. Finally, the article discusses the need to replace the Allen provisions with a legislative framework that facilitates pretrial access to information and minimizes “trial ambush,” but without compromising the fair and efficient operation of the adversary system.

The Role Of The Federal Magistrate Judge In Civil Justice Reform, R. Lawrence Dessem

Faculty Publications

This Article considers the role of the United States magistrate judge in civil justice reform and, more specifically, the role that the early implementation districts envision for magistrate judges within their own districts. Part I briefly considers the evolution of the office of magistrate judge prior to the enactment of the Judicial Improvements Act of 1990. Part II addresses the treatment of magistrate judges under that legislation. Next, Part III recounts the roles assigned to magistrate judges under the Civil Justice Reform Act in the individual district courts. These varying uses of magistrate judges then will be critiqued in Part …

Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins

Faculty Publications

No abstract provided.

Judicial Reporting Under The Civil Justice Reform Act: Look, Mom, No Cases!, R. Lawrence Dessem

Faculty Publications

This article addresses the new reporting provision of the Civil Justice Reform Act. Part II analyzes the reporting requirement and the requirement's legislative history. Part III describes the implementation of the requirement by the federal judiciary, while Part IV discusses the initial reports filed pursuant to the provision and the media coverage of those reports. Part V next analyzes the wisdom of the reporting requirement, concluding that, on balance, the requirement may be helpful in furthering public accountability of an independent federal judiciary. Part VI then considers what the data now publicly reported under the Civil Justice Reform Act does, …

Preemption By Fiat: The Department Of Labor's Usurpation Of Power Over Noncitizen Workers' Right To Unemployment Benefits, Irene Scharf

Faculty Publications

This Article starts with the premise that the right to unemployment insurance benefits is a property right protected by the Fifth and Fourteenth Amendments to the United States Constitution, which apply to noncitizen unemployment applicants as well as to United States citizens. Given this assumption, certain actions being taken by the United States Department of Labor ("DOL") violate both procedural and substantive due process as well as the Administrative Procedure Act ("APA"). The challenged actions involve the DOL's issuance of internally-created missives, termed Unemployment Insurance Program Letters ("Program Letters"), that purport to interpret the meaning of a requirement under federal …

A Legislative History Of The Creation Of The Eleventh Circuit, Thomas E. Baker

Faculty Publications

No abstract provided.

The New Criminal Discovery Code In Oklahoma: A Two Way Street In The Wrong Direction, Rodney J. Uphoff

Faculty Publications

This article first examines criminal discovery in Oklahoma prior to the Allen decision. Next, section II of the article explores Allen and the court’s justifications for creating a reciprocal discovery system. The article reviews the Allen procedures and similar pre-trial discovery provisions contained in the American Bar Association’s Standards for Criminal Justice and questions whether Allen’s new discovery system will achieve the desired results. Section II also focuses on the constitutionality of the defendant’s disclosure obligations and the adverse effects of mandating such disclosures on the adversary system. Finally, section III of the article proposes an alternative discovery code based …

An Introduction To Federal Court Rulemaking Procedure, Thomas E. Baker

Faculty Publications

Toward the end of September 1990 at a closed meeting in Washington, DC, the Judicial Conference of the United States passed on a substantial set of proposed amendments to the rules of practice and procedure of the federal courts. The new appellate rules authorized local circuit rules on electronic filing, required a jurisdictional statement in the appellant's brief and eliminated some inconsistencies in the notice rules for admiralty appeals.

Citizenship, Alienage, And Ethnic Origin Discrimination In Employment Under The Law Of The United States, Mack Player

Faculty Publications

INTRODUCTION

This paper will survey the federal law of discrimination in employment based on ethnic origin, alienage, and citizenship. There are a number of sources of this law, many of them overlapping. The federal constitution provides some protections, but only to governmental employees or applicants. The traditional centerpiece of employment discrimination law is Title VII of the Civil Rights Act of 1964. The 1866 Civil Rights Act also provides protection which overlaps with that provided by Title VII. Finally, the recently enacted Immigration Reform and Control Act of 1986 regulates both national origin discrimination, thus duplicating the protections of Title …

Personal Jurisdiction After Asahi: The Other (International) Shoe Drops, R. Lawrence Dessem

Faculty Publications

This articles analyzes the growth and development of the doctrine of personal jurisdiction and the Supreme Court's consideration and application of that doctrine in the recent case of Asahi Metal Industry Co. v. Superior Court. Asahi is significant both because of the nature of the suit and the nationality of the third-party defendant. The Supreme Court for the first time directly addressed the constitutionality of the ‘stream of commerce’ doctrine of personal jurisdiction, a jurisdictional theory that has been employed increasingly in recent years in products liability actions. Asahi also is one of the few cases in which the Court …

The Scope Of Liability Under Section 12 Of The Federal Securities Act Of 1933: 'Participation' And The Pertinent Legislative Materials, Douglas E. Abrams

Faculty Publications

Section 12 of the Securities Act of 1933 creates two private rights of action, each providing in relevant part that ‘ a ny person who offers or sells a security . . . shall be liable to the person purchasing such security from him . . ..’ Because suit may be maintained only by the person who purchases the security from defendant, an offeror may incur section 12 liability only if the offeror also ‘sells' the security to the plaintiff. Section 12(1) imposes liability on any seller whose offer or sale violates the Act's registration or prospectus requirements found in …

California's Foreclosure Statutes: Some Proposals For Reform, Cynthia Mertens

Faculty Publications

Spurred by the harsh economics of the Great Depression, California enacted several statutes designed to protect pledgors of real property from unfair and often ruinous deficiency judgments. This legislation includes Code of Civil Procedure sections 580a,the fair value section, 580b,the purchase-money anti-deficiency statute, 580d; the nonjudicial foreclosure anti-deficiency statute, and 726, the "one-action" rule. Three decades of judicial interpretation, however, have created a body of case law which fails to advance the legislative purposes upon which the courts purportedly base their decisions.

The time has come for California to substantially revise its Depression-era anti-deficiency legislation in order to express and …

Sex Discrimination In Coaching, R. Lawrence Dessem

Faculty Publications

This article will attempt to provide a legal framework for analysis of this not uncommon payment of lower salaries or stipends to the teacher-coaches (both male and female) of girls' athletics than to the teacher-coaches of comparable or identical boys' sports.

Wordiness In Legislation, Lucian Minor

Faculty Publications

No abstract provided.