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Full-Text Articles in Law

Book Review: We The People: The Fourteenth Amendment And The Supreme Court, S. I. Strong Nov 2000

Book Review: We The People: The Fourteenth Amendment And The Supreme Court, S. I. Strong

Faculty Publications

Never one to shirk a challenge, Michael Perry has taken on the difficult task of investigating whether, as charged by a number of prominent social and legal commentators, "the modern Supreme Court, in the name of the Fourteenth Amendment [to the US Constitution], [has] usurped prerogatives and made choices that properly belong to the electorally accountable representatives of the American people," and if so, to what extent (p. 8). Perry makes no attempt to address every facet of Fourteenth Amendment doctrine, but instead focuses his discussion on some of the most controversial topics: racial segregation, affirmative action, discrimination on the ...


A Form Letter From The Dean, R. Lawrence Dessem Oct 2000

A Form Letter From The Dean, R. Lawrence Dessem

Faculty Publications

A few years ago, in “A Form Letter to the Dean,” I offered the Journal's readers a template form letter which law school faculty could use to communicate with their deans. In the aftermath of that article's publication, I received letters, phone calls, and small explosive devices indicating that, mirabile dictu, a few people had actually read the article. Because I had never before had such a response to any of what I rather loosely refer to as my scholarship, I was encouraged to write a sequel. Hence the present piece. My current form letter is inspired by ...


Health Care Law: Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr. Oct 2000

Health Care Law: Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr.

Faculty Publications

Historically, courts have treated professional malpractice cases as unique. When disputes that would otherwise have been governed by tort rules of general application have arisen in the context of medical treatment, courts have routinely constructed special rules for the resolution of those disputes. Recent evidence suggests that this penchant for special rules may be weakening and that malpractice law may be slowly melting back into the sea of tort doctrine.The three Missouri health care law cases noted in this issue are the latest evidence that courts today are more willing to resolve medical negligence actions using tort rules of ...


Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells Oct 2000

Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells

Faculty Publications

Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with ...


Restricting Public Employees' Political Activities: Good Government Or Partisan Politics?, Rafael Gely, Timothy D. Chandler Oct 2000

Restricting Public Employees' Political Activities: Good Government Or Partisan Politics?, Rafael Gely, Timothy D. Chandler

Faculty Publications

The article starts by reviewing, in Part II, the history of the regulation of political activities by public employees, and in Part III, the regulation of patronage. Part IV develops the argument that both sets of regulations, although justified on different grounds, are better understood as political control mechanisms. Part V provides some empirical evidence for this argument by examining voting patterns on federal legislation restricting public employees' political activities. Part VI discusses the relationship of these laws to public sector unionization. Part VII concludes the article.


The Business Lawyer As Terrorist Transaction Cost Engineer, Royce De R. Barondes Oct 2000

The Business Lawyer As Terrorist Transaction Cost Engineer, Royce De R. Barondes

Faculty Publications

Lawyers have garnered a reputation for being unreasonable and excessively contentious. This popular sentiment is embedded in our culture. If lawyers cannot change that perception, a second-best outcome (from the perspective of lawyers) would be the formation of an understanding that there is a reason why they appear to act unreasonably, that it can be desirable for lawyers to act in a way that initially appears to be unreasonable. This Article attempts to build a basis for that understanding in the context of lawyers participating in large commercial transactions.


Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck Jul 2000

Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck

Faculty Publications

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in ...


Case And Comment: Between The Baby And The Breast, S. I. Strong Jul 2000

Case And Comment: Between The Baby And The Breast, S. I. Strong

Faculty Publications

IN Re C (A CHILD) (HIV Test) [1999] 2 F.L.R. 1004, a local authority applied for a specific issue order to test a four-month-old baby girl for HIV. The mother of the child first tested positive for HIV in 1990, but adopted a highly sceptical stance towards generally accepted theories about HIV and AIDS, and refused conventional therapy for herself, preferring to rely on a healthy lifestyle as a prophylactic. The case arose when the baby's physician became aware not only that the mother was breastfeeding the child (despite the risk of transmission of HIV), but that ...


Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii Jul 2000

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a ...


Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii Jul 2000

Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii

Faculty Publications

On October 12-13, 2000, the U.S. Sentencing Commission sponsored its Third Symposium On Crime and Punishment in the United States: Federal Sentencing Policy for Economic Crimes and New Technology Offenses. The afternoon of the first day of the meeting was devoted to discussing the concept of “loss” as a measurement of defendant culpability and offense seriousness. The conferees were divided into small groups to discuss discrete sub-issues relating to “loss” and its place in sentencing economic crimes under the Guidelines. Following the small group discussions, the discussion leaders (“facilitators”) addressed a plenary session of the conference to report on ...


States Starting To Offer Legal Protection For Apology, Richard C. Reuben Jul 2000

States Starting To Offer Legal Protection For Apology, Richard C. Reuben

Faculty Publications

There is a small trend a-foot in the state legislatures, and a welcome one at that: Providing some legal protection for people who want to apologize for their role in a harm, but who are fearful because of the possibility that their apologies will later be used against them in legal proceedings.


Statutory Interpretation, Property Rights, And Boundaries: The Nature And Limits Of Protection In Trademark Dilution, Trade Dress, And Product Configuration Cases, Gary Myers Apr 2000

Statutory Interpretation, Property Rights, And Boundaries: The Nature And Limits Of Protection In Trademark Dilution, Trade Dress, And Product Configuration Cases, Gary Myers

Faculty Publications

This article, however, takes the view that the basic landscape in trademark law is unlikely to change in the near future. Congress has only recently enacted the Trademark Dilution Act, and there seems to be little movement to amend it dramatically, let alone repeal it. There have been several recently enacted amendments to the Lanham Act addressing functionality that make great sense and are consistent with the principles suggested here, as will be discussed below. Moreover, the Supreme Court in Two Pesos, Qualitex, Park ‘n’ Fly, and Samara has recently set forth rules that will allow trade dress claims to ...


Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff Apr 2000

Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff

Faculty Publications

A law student approached me not long ago to discuss a problem he had encountered while helping to prepare a criminal case for retrial. The defendant's first trial ended with a hung jury. The defendant, Steven Brown, now faced a second trial on the same misdemeanor charge of assaulting a police officer. Although the defendant still wanted to go to trial, Brown told defense counsel that he did not want his elderly father to have to testify again. From defense counsel's standpoint, the father's testimony was critical because he was the only witness corroborating the defendant's ...


Sentencing Guidelines: Where We Are And How We Got Here (Panel Remarks), Frank O. Bowman Iii Apr 2000

Sentencing Guidelines: Where We Are And How We Got Here (Panel Remarks), Frank O. Bowman Iii

Faculty Publications

The Federal Sentencing Guidelines were created with two broad goals in mind. One, of course, was to reduce unjustified sentencing disparity, and that was accomplished in two ways. The first was to reduce the scope of front-end judicial discretion through the creation of guidelines. The second, which I think Tom Hutchison touched on,1 was to eliminate altogether the discretion of penological experts in the parole commission at the back end of the punishment process.


Nursing Home Residents And The New California Health Care Decisions Law, David M. English, Rebecca C. Morgan Apr 2000

Nursing Home Residents And The New California Health Care Decisions Law, David M. English, Rebecca C. Morgan

Faculty Publications

This article explores issues involving advance directives made by nursing home residents, both prior to and during their stay in a facility, including the frequency of making directives, the reasons why residents fail to make directives, and the reasons why facilities often fail to honor them. Specifically, this article examines these issues in light of the 1999 California Health Care Decisions Law, effective July 1, 2000, and focuses on how this new statute can be used to empower nursing home residents, and adults more generally, to take control of decisions regarding their own health care.


The Case Against Private Disparate Impact Suits, Thom Lambert Apr 2000

The Case Against Private Disparate Impact Suits, Thom Lambert

Faculty Publications

This article argues that the Third Circuit, and the courts that have implicitly approved private disparate impact suits, have erred in construing Title VI to permit private plaintiffs to sue federally funded entities for discrimination based on disparate impact alone. From a policy standpoint, permitting private disparate impact suits is a bad idea, for the threat of such suits will lead to deterrence of actions and decisions that have incidental disparate effects but are, on the whole, good.


Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande Apr 2000

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for ...


Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii Apr 2000

Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii

Faculty Publications

To understand Fear of Judging and the debate over the Federal Sentencing Guidelines requires some familiarity with the sentencing reform movement that led to the adoption of the Federal Sentencing Guidelines in 1987, as well as at least a rudimentary grasp of the structure of the Guidelines themselves. For those readers who require an introduction to both subjects, the next section of this Article attempts to provide one. Those already familiar with the Guidelines and their history can skip to Section III, where the discussion of Fear of Judging begins in earnest.


Adequacy Of Disclosure Of Restrictions On Flipping Ipo Securities, Royce De R. Barondes Jan 2000

Adequacy Of Disclosure Of Restrictions On Flipping Ipo Securities, Royce De R. Barondes

Faculty Publications

This Article examines the implications of this practice under the disclosure obligations imposed by federal securities laws and concludes that the current disclosure is materially misleading, particularly in light of the failure to disclose the selective application of the penalties. Moreover, the selective application of the penalties casts significant doubt on whether these offerings can be considered “fixed price” offerings, which would mean that cursory disclosure of the practice would not suffice.


Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky Jan 2000

Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky

Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons — some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these ...


Reinvigorating Chapter 11: The Case For Reinstating The Stock-For-Debt Exception In Bankruptcy, Michelle A. Cecil Jan 2000

Reinvigorating Chapter 11: The Case For Reinstating The Stock-For-Debt Exception In Bankruptcy, Michelle A. Cecil

Faculty Publications

This Article suggests that such a proposal will harmonize the bankruptcy policy of rehabilitating financially distressed corporations with the tax policy of ensuring that true economic income is subject to federal income taxation.27 Parts II and III of this Article will trace the common law evolution of the stock-for-debt exception and its statutory codification in 1980, with particular emphasis on the stated policy justifications for the exception. Part IV will then examine the history of the repeal of the stock-for-debt exception, demonstrating that the repeal was the result of hasty political maneuvering rather than reasoned legislative decision-making. In Part ...


Statutory Rape Law And Enforcement In The Wake Of Welfare Reform, Rigel C. Oliveri Jan 2000

Statutory Rape Law And Enforcement In The Wake Of Welfare Reform, Rigel C. Oliveri

Faculty Publications

The recent national efforts at reforming the welfare system and new research on the connection between teen pregnancy and statutory rape have led many states to enact stricter laws against statutory rape and to increase the enforcement of existing laws. Punitive statutory rape laws are being viewed more and more as a mechanism for shrinking the welfare rolls by reducing teen pregnancy. Rigel Oliveri documents the resurgence of statutory rape law and enforcement and explores the ramifications it will have on teen parents. In particular, Oliveri approaches the issue from several analytical frameworks, discussing arguments for consent-based standards, the privacy ...


Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben Jan 2000

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben

Faculty Publications

Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right ...


Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii Jan 2000

Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii

Faculty Publications

The central innovation of the guidelines sentencing revolution has been the creation of a regime in which facts other than those required for conviction have necessary consequences at sentencing. In days of yore, judges mulling a sentence were entitled to receive information from virtually any source on virtually any subject, but they were never obliged to pass public judgment on the truth or falsity of what they heard because no finding of fact could constrain their discretion to set a sentence anywhere within the boundaries set by statutory maxima and minima. No more. The project of the original United States ...


Charitable Choice And The Critics, Carl H. Esbeck Jan 2000

Charitable Choice And The Critics, Carl H. Esbeck

Faculty Publications

First, the statute prohibits the government from discriminating with regard to religion when determining whether providers are eligible to deliver social services under these programs. Second, the statute imposes on government the duty not to intrude into the religious autonomy of faith-based providers. Third, the statute imposes on both government and participating FBOs the duty not to abridge certain rights of the ultimate beneficiaries of these programs. I will touch on these three principles below, and do so in reverse order.


The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr. Jan 2000

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with ...


Is There A Uniform Trust Act In Your Future, David M. English Jan 2000

Is There A Uniform Trust Act In Your Future, David M. English

Faculty Publications

The National Conference of Commissioners on Uniform State Laws (NCCUSL) is close to completing the first comprehensive attempt at the national level to codify the law of trusts-the Uniform Trust Act (Act). This article describes the reasons for the Act and many of its provisions. The Act is scheduled for final reading and approval by NCCUSL during the summer of 2000, meaning that states may begin enacting the Act in its final form in their 2001 legislative sessions. This article is based on the draft discussed at NCCUSL's 1999 annual meeting.


The Insurer's Right To Reimbursement Of Defense Costs, Robert H. Jerry Ii Jan 2000

The Insurer's Right To Reimbursement Of Defense Costs, Robert H. Jerry Ii

Faculty Publications

This Article examines the theoretical justification for the insurer's asserted right to reimbursement of defense costs incurred in defending noncovered claims. Part I sketches some details about the duty to defend which are necessary prerequisites to exploring any claim to a right of reimbursement. Part II discusses the rationale offered by most courts and commentators for recognizing the right to reimbursement: under the law of restitution, the insurer who defends a noncovered claim bestows a benefit on the policyholder which, in justice, ought to be returned. This Part concludes that a reasoned argument can be made in support of ...


Toward More Sophisticated Mediation Theory, John M. Lande Jan 2000

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.


A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii Jan 2000

A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii

Faculty Publications

In December 1999, the United States Sentencing Commission (Commission), an institution that had been in suspended animation for over a year with all seven voting seats vacant, fluttered its eyelids and came back to life. An agreement between the Senate and the White House produced seven new Commissioners: five sitting federal judges, the former General Counsel of the Commission, and a law professor. The new group began work immediately, making itself accessible in meetings with lawyers and judges around the country, exuding an air of intelligence and collegiality, and dispensing in short order with a backlog of amendments to the ...