Law Commons^™

Competence To Refuse Medical Treatment: Autonomy Vs. Paternalism, George J. Annas

Faculty Scholarship

The right to refuse medical treatment is universally recognized as a fundamental principle of liberty. Nonetheless, the right is often infringed upon by paternalistic physicians who either use too narrow a definition of competence, or misunderstand or ignore the patient's liberty interest in freedom from coerced medical interventions. A careful consideration of competence in the medical care setting leads to a conclusion that it can best be assessed by determining the patient's ability to understand the information necessary to provide informed consent to treatment. If a patient has this capacity, both his consent and refusal must be honored. Placing competence …

The Right Of Property And The Law Of Theft, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Book Review, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Foreword: Public And Private Barriers To Competitive Reform Of Health Care Services Delivery, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

From The Editor: On Legislative History Research, Richard A. Danner

Faculty Scholarship

No abstract provided.

Civil Procedure And Alternative Dispute Resolution, Paul D. Carrington

Faculty Scholarship

No abstract provided.

The Price Of Asking The Wrong Question: An Essay On Constitutional Scholarship And Judicial Review, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

First Amendment Limitations On Recovery From The Press—An Extended Comment On “The Anderson Solution”, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The Original Understanding Of Original Intent, H. Jefferson Powell

Faculty Scholarship

When interpreting the Constitution, judges and commentators often invoke the "original intent of the framers" in support of their positions. Many claim that such an interpretative strategy is not only currently desireable, but indeed was the expectation of the Constitution's drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected the future interpreters to seek the meaning of the document in the framers' intent. He first examines the various cultural traditions that influenced legal interpretations at the time of the Constitution's birth. Turning to the history of …

Timing Under A Unified Wealth Transfer Tax, Theodore S. Sims

Faculty Scholarship

The United States taxes gifts made while an individual is living more leniently than it taxes wealth transfers at death. Although in some measure this disparity has existed since the enactment of the modern estate and gift taxes in 1916 and 1932, it was significantly narrowed by the Tax Reform Act of 1976 (the 1976 Act). That statute replaced the separate gift and estate taxes with a regime that taxes the cumulative total of an individual's lifetime taxable gifts and his taxable estate at death, under a single (or "unified") graduated table of rates. Nevertheless, there remains a signficant difference …

The Consumer's Emerging Right To Boycott: Naacp V. Claiborne Hardware And Its Implications For American Labor Law, Michael C. Harper

Faculty Scholarship

Hard cases do not always make bad law. Sometimes, when confronted with records that will yield neither to the direct application of established legal principles nor to factual manipulation, courts articulate, or at least suggest, a new principle which should and often does refine a body of old law. The Supreme Court's decision in NAACP v. Claiborne Hardware Co." should become a prominent and salutary example of such hard cases. Before Claiborne Hardware, the Court had indicated that legislatures, for rational economic policy reasons, could make peaceful consumer boycotts illegal.' Confronted with compelling facts in the Claiborne Hardware …

Biological Monitoring: The Employer's Dilemma, Frances H. Miller

Faculty Scholarship

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers’ economic stability. Often these hazards are documented and dealt with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses.

This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute …

Corporate Directors Duty Of Care: The American Law Institute Project On Corporate Governance, Tamar Frankel

Faculty Scholarship

The American Law Institute's Principles of Corporate Governance and Structure: Restatement and Recommendations (ALI Project) has triggered a sharp debate on corporate directors' duty of care. The history of the ALI Project and the events that led to its establishment have received different interpretations. All agree, however, that the Project was prompted by a movement to internalize control over the managements of large American corporations through independent, trustworthy boards of directors to which courts will defer; a movement towards increased corporate self-governance The debate over the ALl Project's statement of the duty of care is important because the results of …

An Analysis Of Durrett And Its Impact On Real And Personal Property Foreclosures: Some Proposed Modifications, William H. Henning

Faculty Scholarship

Section 548(a)(2) of the Bankruptcy Code empowers a bankruptcy trustee to avoid fraudulent transfers of the debtor's assets if the debtor was insolvent at the time of the transfer. Since 1980, a number of federal courts have allowed trustees in bankruptcy to avoid properly conducted foreclosure sales of a debtor's pledged collateral when the collateral was sold for less than seventy percent of its fair market value. These courts have based their decisions on the theory that the transfers involved in these sales are fraudulent conveyances. This theory has been the subject of vigorous opposition from mortgage holders and other …

Role Of A National Legal Information Center In The Access To Justice, The, Robert J. Nissenbaum

Faculty Scholarship

The author reviews the nature of disputes and mechanisms for dispute

Recent Developments In Tax-Exempt Organizations, Stephen Schwarz, William T. Hutton

Faculty Scholarship

No abstract provided.

The "Discovery" Of Sexual Abuse: Experts' Role In Legal Policy Formulation, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Refusal Of Lifesaving Treatment For Minors, George J. Annas

Faculty Scholarship

I feel very comfortable talking about human rights, civil rights, the role of individual privacy, autonomy, and dignity in making decisions about oneself. Yesterday's topics concerning adults and privacy, however, were much easier than today's, which deal with children. It's not difficult to argue for the right of competent adults, whether it be in Texas' or California,2 to make their own decisions. As much as we may or may not agree with their decisions, at least arguing that -competent individuals like Dax Cowart and Elizabeth Bouvia have a right to make their own decisions makes a lot of sense; the …

Dillon V. Legg Revisited: Toward A Unified Theory Of Compensating Bystanders And Relatives For Intangible Injuries, John L. Diamond

Faculty Scholarship

No abstract provided.

Law As An Instrument Of Educational Policy-Making, David Jung, David L. Kirp

Faculty Scholarship

No abstract provided.

Juror Prejudice: An Empirical Study Of A Challenge For Cause, Neil Vidmar, Julius Melnitzer

Faculty Scholarship

The authors empirically examine the challenge for cause process in the context of a murder trial in a rural region in southern Ontario. A survey was under-taken to assess prejudice and is compared to prejudice found in potential jurors. The study also compares the verdicts on each potential juror screened in the challenge for cause process, as rendered by the triers, defence counsel and a professional psychologist observing the proceedure. The results of these studies are presented within.

U.S. Software Protection: Problems Of Trade Secret Estoppel Under International And Brazilian Technology Transfer Regimes Note, Joel R. Reidenberg

Faculty Scholarship

This note describes the fundamental aspects of software protection and applies the requisites of U.S. trade secret protection to software. After explaining how the UNCTAD and Brazilian transfer of technology regimes apply to software licensing arrangements, this note argues that software distribution under these regimes estops U.S. trade secret protection by defeating the requisites of secrecy and competitive advantage. Specifically, the effects of the UNCTAD Draft International Code of Conduct on the Transfer of Technology (UNCTAD Code) and the Brazilian technology transfer regulations are analyzed to demonstrate the difficulties posed by legal regimes being considered and already in force in …

Re-Thinking Parenthood As An Exclusive Status: The Need For Legal Alternatives When The Premise Of The Nuclear Family Has Failed, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Reconsidering Supervisory Power In Criminal Cases: Constitutional And Statutory Limits On The Authority Of The Federal Courts, Sara Sun Beale

Faculty Scholarship

No abstract provided.

From The Editor: On Professional Literature, Richard A. Danner

Faculty Scholarship

No abstract provided.

An Assessment Of Affirmative Action In Law School Admissions After Fifteen Years: A Need For Recommitment, Leo M. Romero

Faculty Scholarship

Law schools have been admitting minority students through affirmative action programs since the late 1960s. The number of minority students matriculating in American law schools increased significantly as a result of affirmative action. Nearly three thousand or 4.3 percent of the 68,386 students enrolled in 1969-1970 were members of minority groups. By 1982-1983, the number and percentage of minority students had increased to 11,611 and 9 percent of the law school population of 127,915. The percentage of minority applicants enrolled in the first year of law school jumped from 4.2 percent in 1969-1970 to 10.5 percent in 1982-1983.

Mexican Liberals And The Pueblo Indians, 1821 - 1829, G. Emlen Hall, David J. Weber

Faculty Scholarship

When independence from Spain seemed an irreversible fact and he could no longer avoid acknowledging it, the last Spanish governor of the isolated frontier province of New Mexico, the loyal Facundo Melgares, ordered celebrations in honor of the birth of the new Mexican nation. On 6 January 1822, the streets of Santa Fe rang with the sound of church bells and guns fired into the air, as people made their way to Mass, participated in processions, listened to speeches, watched a special play, and danced well into the night. Among the revelers were Pueblo Indians from Tesuque who performed a …

Property And Support Rights Of Unmarried Cohabitants: A Proposal For Creating A New Legal Status, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

The Small Claims Court: A Reconceptualization Of Disputes And An Empirical Investigation, Neil Vidmar

Faculty Scholarship

In this paper disputes are seen as varying along a dimension of admitted liability, that is, the extent to which defendants admit some obligation to plaintiffs; they may admit no liability, partial liability, or full liability. This conceptualization was used in an empirical study of a small claims court. The results paint a portrait of the court that is at variance with most of the previous literature. Consumer issues constitute a substantial portion of the court caseload. On average, defendants, including individual consumers, do well when they dispute claims. Among disputed cases, small rather than large businesses predominate. Prior literature …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.