Law Commons^™

Bush V. Gore And The Distortion Of Common Law Remedies, Tracy A. Thomas

Tracy A. Thomas

The book The Final Arbiter addresses the legal and political consequences of the Bush v. Gore decision. This article presented as Chapter 4 addresses the lasting impact of Bush v. Gore on the law of remedies. While others have focused on what the Court should or could have done in the case, this article focuses on what the Court actually did by analyzing the text of the decision and the remedial platform that formed the Court's consensus. The Court in Bush adopted a new model of prophylactic relief that provided too much, not too little relief. Yet this prophylactic remedy …

Alice In Wonderland Meets The U.S. Patent System, Jay Dratler

Jay Dratler

Among the joys of being a professor, as distinguished from practicing law, are the leisure and incentive to think and write about the big picture. Another joy is being able to say what you really think. We professors don't have to focus on attracting clients or maintaining an impression of studied understatement and moderation for judges and juries. In this talk, I'm going to exercise both of these prerogatives. I've been thinking about the big picture in patents for over a quarter century, and I'm more worried than I've ever been. Let me begin by making my usual (and truthful) …

Activist Or Automaton: The Institutional Need To Reach A Middle Ground In American Jurisprudence, Richard L. Lavoie

Richard L. Lavoie

No abstract provided.

A Practical And Pragmatic Approach To Freedom Of Conscience, Martin H. Belsky

Martin H. Belsky

Using a series of anecdotes and illustrations, the author posits that freedom of conscience, broadly defined, can only be protected, if at all, by assertive individual and group action. Such action must be not just against government interference but also against non-governmental or private activities as well as intimidation. Professor Belsky urges individual balancing of the freedom of conscience and other legal, governmental and societal interests. This balancing is a form of “constitutionalism,” and when necessary must be followed up by enforcement through personal action.

Should Attorneys Have A Duty To Report Financial Abuse Of The Elderly?, Carolyn L. Dessin

Carolyn L. Dessin

Exploitation of older persons is a growing problem in America. As a result, our legal and social systems are struggling to develop structures that will prevent, remedy and punish instances of abuse. From all indications, financial abuse is becoming increasingly common, and can be devastating to its victim.

States have enacted a wide variety of statutes aimed at alleviating financial abuse. There are two relevant bodies of law: a state's protective services law and the state's criminal law. Although one may normally think of the purpose of the criminal law as deterring and punishing crimes, and the protective services law …

Modification And Termination Of Irrevocable Trusts Under The Ohio Uniform Trust Code, Alan Newman, Jamie R. Minor

Alan Newman

The adoption of the Ohio Uniform Trust Code (the “OUTC” or “the Code”) will constitute a comprehensive codification of trust law in Ohio. Among the many subjects it covers are the modification and termination of trusts. As noted in a comment to the national Uniform Trust Code (the “UTC”), “the overall objective of these [modification and termination] sections is to enhance flexibility consistent with the principle that preserving the settlor’s intent is paramount.” Given such factors as the increased use of trusts in recent years (including trusts created by non-lawyers and lawyers who do not specialize in estate planning); the …

Powers That Be: A Reexamination Of The Federal Courts' Rulemaking And Adjudicatory Powers In The Context Of A Clash Of A Congressional Statute And A Supreme Court Rule, Bernadette Bollas Genetin

Bernadette Bollas Genetin

This Article examines the long-standing conflict between Rule 17(b) of the Federal Rules of Civil Procedure, which was promulgated by the Supreme Court, and a federal statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Article emphasizes that, when a Federal Rule incorporates state law, many federal courts have applied and inappropriate analysis to conflicts between congressional statutes and Supreme Court Rules; these courts focus on a clash of federal-state authority, rather than recognizing that the conflict presents a horizontal clash of federal authority.

The Article has three goals. First, the Article identifies the flaw in current statute-Rule …

The Intention Of The Settlor Under The Uniform Trust Code: Whose Property Is It, Anyway?, Alan Newman

Alan Newman

The Intention of the Settlor Under the Uniform Trust Code: Whose Property Is It, Anyway?

The question of the extent to which the owner of property may transfer it gratuitously, subject to enforceable restrictions on alienability and use, has a long history. To protect the living from control by the dead, as well as the alienability of property, the law traditionally has refused to enforce some such restrictions. Opposing those interests, however, is the interest in respecting the freedom of the owner of property to dispose of it subject to whatever restrictions he or she chooses to impose.

The Uniform …

Spendthrift And Discretionary Trusts: Alive And Well Under The Uniform Trust Code, Alan Newman

Alan Newman

Spendthrift and Discretionary Trusts: Alive and Well under the Uniform Trust Code

Among the provisions of the Uniform Trust Code (“UTC” or the “Code”) that have attracted the most attention are those of Article 5: Creditor’s Claims; Spendthrift and Discretionary Trusts. Although much of the UTC is a codification of the common law of trusts, there are many differences among the states in their handling of various creditors’ rights issues, and many jurisdictions have no law on some of those issues. As a result, there is no well-accepted, established common law on some of the issues addressed by Article 5. …