Law Commons^™

Soul For Sale: An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements, Susan Saab Fortney

Faculty Scholarship

This article analyzes the results of an empirical study to illustrate the effect of billable hour requirements on associate satisfaction and law firm culture. Part I briefly describes the survey design and the general profile of the survey respondents. Part II discusses current billing practices and pressures analyzing the study results related to billing expectations and guidance as well as firm culture and work alternatives. Using findings from the study, Part III considers the detrimental micro and macro effects of increasing billable hour expectations. Part IV proposes various steps and measures that can be taken to address the negative consequences …

Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr

Faculty Scholarship

In a recent article, Professor Hanoch Dagan argues that courts should incorporate the principle of distributive justice into their decisions as to whether a particular property owner should receive compensation in response to a government-imposed redistribution of property. To that end, he proposes a concept called "progressive" compensation that he believes will better serve distributive justice than present doctrine while at the same time improving the efficiency of governmental decision-making. This Essay questions key aspects of Professor Dagan's analysis, proposes as an alternative a uniform few-many rule for resolving takings issues. If funded through progressive taxation, such a rule would …

Book Review - Reviewing William D. Popkin, Statutes In Court: The History And Theory Of Statutory Interpretation (1999), Stephen R. Alton

Faculty Scholarship

Book Review Extract:

In his well-written and well-argued book, William D. Popkin delivers on the promise denoted in his title. Part I of the book details the Anglo-American history of statutory interpretation. Part 11 begins by surveying the most important contemporary theories in the field of statutory interpretation. Part 11 ends with the author's rejection of these theories and the exposition of his own theory, which he calls "ordinary judging." Popkin argues that his is "the best perspective for understanding the discretionary judicial role [in interpreting statutes] . . . whereby judges indulge a modest competence to contribute to good …

From Pirates To Partners: Protecting Intellectual Property In China In The Twenty-First Century, Peter K. Yu

Faculty Scholarship

During the late 1980s and early 1990s, the United States repeatedly threatened China with a series of economic sanctions, trade wars, non-renewal of most-favored-nation status, and opposition to entry into the World Trade Organization. Such threats eventually led to compromises by the Chinese government and the signing of intellectual property agreements in 1992, 1995, and 1996. Despite these agreements, intellectual property piracy remains rampant in China.

Although China initially had serious concerns about the United States's threats of trade sanctions, the constant use of such threats by the U.S. government has led China to change its reaction and approach. By …

E-Obviousness, Glynn S. Lunney Jr

Faculty Scholarship

In 1790, Congress enacted the first patent statute and imposed two substantive requirements before a patent could issue: novelty and utility. Administrators of the patent system, however, recognized from the outset that patents ought not be granted for every trivial advance in an art; some more substantial improvement was required In 1851, the Court formally tied this third substantive requirement for patentability to the language of the Constitution by distinguishing minor improvements reflecting "the work of the skilful mechanic" from substantial improvements reflecting "[the work] of the inventor."

In 1952, Congress formally incorporated this third requirement, mandating substantial improvements, into …

It's Good To Be The King: Prosecuting Heads Of State And Former Heads Of State Under International Law, Mary Margaret Penrose

Faculty Scholarship

This Article criticizes historical practices regarding the prosecution of sitting and former heads of state. It argues that such persons should stand trial for their alleged crimes. However, as the Article illustrates, state practice and international law as they currently exist offer only limited help toward advancing this goal. Although the Pinochet precedent offers evidence that states may be shifting toward a willingness to prosecute heads of state, Professor Penrose advocates the enactment of prosecutorial rules and regulations and urges countries to take the necessary steps to create an international criminal court so that criminal defendants may be tried in …

The Trade Dress Emperor's New Clothes: Why Trade Dress Does Not Belong On The Principal Register, Glynn S. Lunney Jr

Faculty Scholarship

We take it largely for granted today that the Trademark Act of 1946 permits the registration of trade dress on the principal register, but that has not always been the rule. Until 1958, the Patent and Trademark Office, following Congress's intent expressed in the Act's plain language and legislative history, excluded trade dress from the principal register as a matter of law. In 1958, Assistant Commissioner Daphne Robert Leeds changed the rule and allowed the registration of a product package as a trademark on the principal register. Unable to find any legitimate basis for reading the Trademark Act to permit …

Shedding A Little Light On A Well-Kept Secret, Malinda L. Seymore

Faculty Scholarship

No abstract provided.

Accountability And Democracy In The Case Of Using Force Under International Auspices, Charlotte Ku, Harold K. Jacobson

Faculty Scholarship

This presentation derives from a large research project that has been more than three years in progress and reflects the work of a multinational team of lawyers, policy analysts, and political scientists. The project is supported by the Ford Foundation and will conclude at the end of 2000 with the completion of a book that will cover the experience of nine democracies in deploying their military forces under international auspices as this experience relates to two large questions.

The project examines two questions:

• What is the interactive relationship between international commitments and national constitutional and political requirements?
• How does this …

Wrongful Death: Oklahoma Supreme Court Replaces Viability Standard With "Live Birth" Standard, Fatma Marouf

Faculty Scholarship

Since the United States Supreme Court decision of Roe v. Wade, the line of viability for human fetuses has been consistently pushed back to earlier and earlier gestational ages. Granting "person" status to a nonviable fetus, even if only for purposes of the wrongful death statute, as the Oklahoma Supreme Court did in Nealis v. Baird, represents an important expansion of fetal rights. Although the court explicitly limited its decision to nonviable fetuses born alive, Judge Opala conceded that much of his opinion could apply equally to stillborn fetuses. The court's decision in Nealis raises important questions about …

American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen

Faculty Scholarship

Lawyers trained in U.S. law schools learn that the Constitution gives Congress the power "[t]o define and punish... offenses against the Law of Nations." Some might also be able to cite the oft-quoted dicta from the Supreme Court's decision in The Paquete Habana that "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." But what does this mean for today's practitioner? One century after Paquete Habana, we ask what is international law, …

I Said No, Mary Margaret Penrose

Faculty Scholarship

I SAID, "NO" For those who would disallow me the freedom to love

Spandau Revisited: The Question Of Detention For International War Crimes, Mary Margaret Penrose

Faculty Scholarship

Drazen Erdemovic. The name may be unfamiliar to many outside the former Yugoslavia. The name will surely be unknown by most people outside the international community and those committed to the universal protection of human rights through criminal prosecution. Drazen Erdemovic is a confessed killer. Drazen Erdemovic has confessed to killing somewhere between seventy and one hundred unarmed Muslims in a mass execution as a member of the Bosnian Serb army in July 1995. In this regard, he is the first convicted defendant to stem from the International Criminal Tribunal for the former Yugoslavia (ICTY) established by the United Nations …

Quartering Species: The Living Constitution, The Third Amendment, And The Endangered Species Act, Andrew P. Morriss, Richard L. Stroup

Faculty Scholarship

The authors argue that the fundamental flaw in the Endangered Species Act (ESA) is that it fails to force government decision makers to consider the opportunity cost of their actions, resulting in flawed decision making that imposes heavy costs on landowners without actually protecting endangered species. The authors develop this analysis through an examination of the ESA in light of the modern "living Constitution" theory of interpretation. They conclude that under this theory the ESA's "quartering of species" on private land violates the Third Amendment's ban on quartering soldiers.

Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo

Faculty Scholarship

Virtually all American jurisdictions have laws-either rules of evidence or mediation-privilege statutes or both-that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement …

Decius S. Wade's Necessity For Codification, Andrew P. Morriss

Faculty Scholarship

Decius S. Wade, former Montana Territorial Supreme Court Justice and Code Commissioner, delivered this address to the Helena Bar Association on April 5, 1894. The address came slightly more than two years after Wade, as one of the three Code Commissioners, had reported draft Civil, Political, Penal, and Procedural Codes to the State Auditor and slightly less than one year before Governor John E. Rickards signed the four codes as passed by the Fourth Legislature. Wade's address came just after the Third Legislature, split three ways among the Democrats, Republicans, and Populists and unable to settle on United States Senators, …

Book Note: Reviewing "Tortured Confessions", Fatma E. Marouf

Faculty Scholarship

Review Extract:

Tortured Confessions presents an innovative perspective on the relationship between torture and propaganda. While much has been written about the way propaganda spurs and sanctifies torture by demonizing "the enemy," few have explored the way torture itself is used to create propaganda. Abrahamian's work explores how the primary purpose of torture in Iran has been to extract ideological recantations from prisoners.

International Law - New Actors And New Technologies: Center Stage For Ngos, John King Gamble, Charlotte Ku

Faculty Scholarship

Technology and the information age are changing the allocation of power and authority in the international system with non-state actors such as intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs) assuming decision-making roles previously reserved primarily to states. Professor David Johnston sees the information age as "creating deep and broad disruptive breaches in our society, disruptions equal to those of the agricultural or industrial revolutions." Professors Keohane and Nye believe that the information age will alter the power structure of governments. Jessica Mathews's stimulating article in Foreign Affairs argues both that the information revolution is shaking the foundations of state authority, …

Debunking The Myth Of Employer Advantage From Using Mandatory Arbitration For Discrimination Claims, Michael Z. Green

Faculty Scholarship

As a matter of general practice, the use of mandatory arbitration as a dispute resolution mechanism for employment discrimination claims has failed to give employers an overall advantage. Instead, this Article will show that the use of mandatory arbitration to resolve statutory employment discrimination disputes presents a significant number of disadvantages for employers, especially large corporations that operate as repeat players in employment litigation.

First, despite purported cost benefits from using alternative dispute resolution ("ADR"), arbitration can be just as expensive as litigation if not more costly. Second, the reluctance of the Supreme Court to clarify the problems with mandatory …

Debating The Field Civil Code 105 Years Late, Andrew P. Morriss, Scott J. Burnham, James C. Nelson

Faculty Scholarship

In 1895, Montana adopted a version of the Field Civil Code--a massive law originally drafted by New York lawyer David Dudley Field in the early 1860s. The Civil Code (and its companion Political, Penal, and Procedural Codes) were adopted without debate, without legislative scrutiny, and without Montanans having an opportunity to grasp the enormity of the changes the Codes brought to the Montana legal system. In sponsoring this debate over whether to repeal the Civil Code, the Montana Law Review is finally giving Montana the opportunity to examine the merits of the Civil Code that she was denied 105 years …

Insurance Issues Related To Lateral Hire Musical Chairs, Susan Saab Fortney

Faculty Scholarship

This article addresses the various insurance issues relating to lawyer mobility. Part I of this article introduces the topic by noting the heightened rate of lawyers making lateral moves and how insurance coverage has responded to an increasingly mobile legal labor force. Part II provides a brief historical perspective on insurer reaction to lateral hire claims. Part III analyzes specific policy provisions related to lateral hires for both the prior firm and the new firm. Part IV discusses how a firm and a lateral lawyer should study and address risks before consummating the move. Part V examines the problems related …

The Destructive Role Of Land Use Planning, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Is land use planning fundamentally different from other forms of central planning? If so, does that difference suggest that land use planning will succeed where other forms of central planning failed? We conclude that land use planning is not fundamentally different from other forms of economic central planning. Further, the working of the market economy, and the long-term success of America's economy, is intertwined in the clear and certain rights and responsibilities generated by the common law of property. The complexity of the modem world does not diminish the need for private property; indeed, it strengthens its imperative. Returning to …