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Faculty Publications

2001

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Institution
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Articles 1 - 30 of 187

Full-Text Articles in Law

Tort Recovery For Loss Of A Chance, David A. Fischer Oct 2001

Tort Recovery For Loss Of A Chance, David A. Fischer

Faculty Publications

Tort lawyers in the United States often think of “loss of a chance” as a theory of “probabilistic causation” that only applies to medical malpractice misdiagnosis cases. The theory is that if a physician negligently fails to diagnose a curable disease, and the patient is harmed by the disease, the physician should be liable for causing the “loss of a chance” of a cure. We shall see that if the chance of a cure is less than 50 percent, the plaintiff cannot prove by a preponderance of evidence that the negligence caused the harm, and would recover no damages under ...


A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely Oct 2001

A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely

Faculty Publications

The comparison of the three labor regulatory regimes raises an interesting counterexample to the traditional model of regulation. Instead of adopting a one-size-fits-all model, could a regulatory model be conceptualized where a menu of regulatory options is made available to the target population? Under such an approach those affected by the regulatory regime will choose among the various regulatory options and adopt those that better fit their particular situations. Part IV.B develops the basic parameters of this proposal. The article ends with a brief conclusion.


Distilling The Essence Of Contract Terms: An Anti-Antiformalist Approach To Contract And Employment Law, Rafael Gely Oct 2001

Distilling The Essence Of Contract Terms: An Anti-Antiformalist Approach To Contract And Employment Law, Rafael Gely

Faculty Publications

A look at the development of labor and employment law in the U.S. reveals one astonishing principle. There is an underlying assumption that employers own the time and activities of employees, and thus any change in the allocation of rights between employers and employees has to be justified against the “interference” with the rights of employers. For example, whenever legislation has been introduced intended to protect workers' rights, employers have argued that such protections will interfere with the right of employers to control their employees. This argument has been successfully made many times, and it has, I argue, shaped ...


Stranger In A Strange Land: Baptist Dean Of A Jesuit Law School, Mack Player Oct 2001

Stranger In A Strange Land: Baptist Dean Of A Jesuit Law School, Mack Player

Faculty Publications

In early 1994 when I was first approached by Santa Clara about beIng dean of its law school, I had to do basic, very basic, research before I returned their call. (This predated Web pages and my ability to access the technology that then existed.) A university guide book gave me the basics.

This sent me scurrymg to an atlas. Where is Santa Clara? As it is to most non-Californians, the profusion of California communities (and universities) with the "Santa" or "San" prefix was bewildering.

Herein foretold one of the princilpal issues that would confront me as dean, namely, the ...


Effective Community Policing Performance Measures, Geoffrey P. Alpert, Daniel Flynn, Alex R. Piquero Oct 2001

Effective Community Policing Performance Measures, Geoffrey P. Alpert, Daniel Flynn, Alex R. Piquero

Faculty Publications

As the philosophy of policing moves from a traditional to a community-oriented approach, performance measures must shift as well. Unlike the typical police performance measures of arrest and crime rates found in traditional police philosophies, community-oriented policing performance measures are more general and tend to measure the extent to which police affect the quality of life in the communities they serve as well as the problems they solve. This manuscript begins the process of developing effective community policing performance measures and presents three case studies through which objectives and performance measures are conceptualized.


Top Ten Reasons To Be A Law School Dean, R. Lawrence Dessem Oct 2001

Top Ten Reasons To Be A Law School Dean, R. Lawrence Dessem

Faculty Publications

Serving as a law school dean can be tough duty. Many people, particularly law school faculty members, have asked over the years why anyone would ever take such a position. This question is particularly relevant because the likely alternative for most deans is service as a full-time professor on a law school faculty-which is, without a doubt, one of the world's truly great jobs..


The Diffusion Of Responsibilty In Capital Clemency, Adam M. Gershowitz Oct 2001

The Diffusion Of Responsibilty In Capital Clemency, Adam M. Gershowitz

Faculty Publications

No abstract provided.


Disability, Equal Protection, And The Supreme Court: Standing At The Crossroads Of Progressive And Retrogressive Logic In Constitutional Classification, Anita Silvers, Michael Ashley Stein Oct 2001

Disability, Equal Protection, And The Supreme Court: Standing At The Crossroads Of Progressive And Retrogressive Logic In Constitutional Classification, Anita Silvers, Michael Ashley Stein

Faculty Publications

This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (l4th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.


The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne Oct 2001

The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne

Faculty Publications

No abstract provided.


Contract Reconceived, Peter A. Alces Oct 2001

Contract Reconceived, Peter A. Alces

Faculty Publications

No abstract provided.


The Externality Of Victim Care, Alan J. Meese Oct 2001

The Externality Of Victim Care, Alan J. Meese

Faculty Publications

No abstract provided.


Moral Philosophy Meets Social Work, Frederic G. Reamer Sep 2001

Moral Philosophy Meets Social Work, Frederic G. Reamer

Faculty Publications

In recent years, social workers have become increasingly aware of ethical dilemmas in practice. Beginning especially in the mid-to-late 1970s, social work's literature has included a steady stream of reflections on difficult moral choices involving conflicts among professional duties and obligations (Loewnberg and Dolgoff 1996; Congress 1998; Reamer 1998, 1999). To what extent do clients have the right to engage in self-harming behavior without interference? How should social workers allocate scarce or limited resources such as emergency services, shelter beds, funds, and even their own time? Is it ethically permissible for social workers to violate laws and regulations they ...


The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer Aug 2001

The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer

Faculty Publications

No abstract provided.


Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck Jul 2001

Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck

Faculty Publications

The United States Supreme Court is surely guilty of making the matter of religion and the First Amendment harder than it ought to be. But it is others who have kept the debate over church/state relations either poisoned with culture-war rhetoric or so shrouded in mystery that seemingly only experts can untangle the juris-prudential snarls. By surrounding this venerable Amendment with a pseudocomplexity concerning the matter of religion these disinformation specialists create confusion, and confusion begets opportunities for further distortion and manipulation. Disagreements over the free exercise of religion and the no-establishment thereof are far simpler to resolve than ...


Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii Jul 2001

Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii

Faculty Publications

Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. Indeed, the assertion that tort law and insurance law are intertwined is utterly unremarkable; many commentators have observed that tort law cannot be understood if the business of insurance and the law regulating it is ignored, and that insurance law cannot be understood if tort law is ignored. Several generations of law students have read casebooks, which in varying degrees pay homage to the connections between torts and insurance. Many law review articles and noteworthy books (or portions thereof) have plumbed the tort-insurance relationship. Although one ...


Embryonic Stem Cell Research As An Ethical Issue: On The Emptiness Of Symbolic Value, Kevin Quinn Jul 2001

Embryonic Stem Cell Research As An Ethical Issue: On The Emptiness Of Symbolic Value, Kevin Quinn

Faculty Publications

The ability to generate a wide variety of stem cell lines (in relatively renewable tissue cultures) opens up a whole new world of breathtaking possibilities for science and medicine. The possibilities include: "in vitro studies of normal embryo-genesis, human gene discovery, and drug and teratogen testing and as a renewable source of cells for tissue transplantation, cell replacement, and gene therapies." But it also opens up a world of complications.

Human EG and ES cells must be recovered from aborted fetuses or live embryos. Because primordial gonadal tissue is removed from fetuses after their death, the derivation of EO cells ...


Bioavailability: On The Frontiers Of Science And Law In Cleanup Methodologies For Contamination, Linda A. Malone Jul 2001

Bioavailability: On The Frontiers Of Science And Law In Cleanup Methodologies For Contamination, Linda A. Malone

Faculty Publications

No abstract provided.


When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud Jul 2001

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Faculty Publications

No abstract provided.


Reflections On Market Reform In Post-War, Post-Embargo Vietnam, Lan Cao Jul 2001

Reflections On Market Reform In Post-War, Post-Embargo Vietnam, Lan Cao

Faculty Publications

No abstract provided.


Duty Rules, David G. Owen Apr 2001

Duty Rules, David G. Owen

Faculty Publications

No abstract provided.


Quiet Rebellion? Explaining Nearly A Decade Of Declining Federal Drug Sentences With Michael Heise, Frank O. Bowman Iii, Michael Heise Apr 2001

Quiet Rebellion? Explaining Nearly A Decade Of Declining Federal Drug Sentences With Michael Heise, Frank O. Bowman Iii, Michael Heise

Faculty Publications

The Article begins with an examination of three primarily empirical questions. First, is the trend real? In other words, is the apparent decrease in federal drug sentences merely a species of statistical hiccup, a random fluctuation that could move easily and rapidly in the other direction? Or is the decline in average drug sentences large enough, and the trend prolonged enough, that we can safely conclude that something meaningful is occurring?


A Tribute To Governor Mel Carnahan, Kenneth D. Dean Apr 2001

A Tribute To Governor Mel Carnahan, Kenneth D. Dean

Faculty Publications

A Tribute to Governor Mel Carnahan


Crumbs For Oliver Twist: Resolving The Conflict Between Tax And Support Claims In Bankruptcy, Michelle A. Cecil Apr 2001

Crumbs For Oliver Twist: Resolving The Conflict Between Tax And Support Claims In Bankruptcy, Michelle A. Cecil

Faculty Publications

This article is premised on the assumption that the congressional goal of preferring support claims over federal income tax claims is indeed a laudable one, based on three interrelated policy justifications. First, support claimants are unable to spread their risk of loss like the government is able to do by raising tax rates or increasing tax revenue from other sources. As three prominent bankruptcy scholars noted in their recent study of consumer bankruptcy entitled The Fragile Middle Class: Americans in Debt:


Experience And Legal Ethics Teaching, James E. Moliterno Apr 2001

Experience And Legal Ethics Teaching, James E. Moliterno

Faculty Publications

No abstract provided.


War, Society, And Disability: Some Thoughts On Applying Under-Utilized Methodologies, Michael Ashley Stein Apr 2001

War, Society, And Disability: Some Thoughts On Applying Under-Utilized Methodologies, Michael Ashley Stein

Faculty Publications

No abstract provided.


Determining Reasonableness Under The Fourth Amendment: Physical Force To Control And Punish Students, Kathryn R. Urbonya Apr 2001

Determining Reasonableness Under The Fourth Amendment: Physical Force To Control And Punish Students, Kathryn R. Urbonya

Faculty Publications

No abstract provided.


Public Trust & Distrust: Theoretical Implications Of The Public Trust Doctrine For Natural Resource Management, Erin Ryan Apr 2001

Public Trust & Distrust: Theoretical Implications Of The Public Trust Doctrine For Natural Resource Management, Erin Ryan

Faculty Publications

This Comment reviews the theoretical underpinnings of the public trust, a doctrine originating in Roman common law and now constitutionalized by many states, and explores its contentious reception by green legal theorists. Since Professor Joseph Sax's revival of the doctrine as a vehicle for environmental legal advocacy in the early 1970s, it has been haJled by many. as the most powerful tool available for protecting natural resource commons and attacked by others who argue that use of the property rights-based doctrine will reify an ownership approach to natural resources and obstruct the development of more stewardship-oriented legal theories of ...


Diplomatic Adjudication, Nancy Amoury Combs Apr 2001

Diplomatic Adjudication, Nancy Amoury Combs

Faculty Publications

No abstract provided.


Bankruptcy Reform: Does The End Justify The Means?, A. Mechele Dickerson Apr 2001

Bankruptcy Reform: Does The End Justify The Means?, A. Mechele Dickerson

Faculty Publications

No abstract provided.


Professor Stephen H. Schulman, Peter J. Henning, Eric Kades Apr 2001

Professor Stephen H. Schulman, Peter J. Henning, Eric Kades

Faculty Publications

No abstract provided.