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Full-Text Articles in Law

Moral Discourse, Bioethics, And The Law, Carl E. Schneider Nov 1996

Moral Discourse, Bioethics, And The Law, Carl E. Schneider

Articles

Dan Callahan follows a distinguished tradition when he uses the phrase "moral discourse" to describe the law's work. The frequency with which that image is deployed suggests its resonance and even rightness: When we think about the way society considers moral issues and develops moral positions, it can be useful to imagine the law as one of many social institutions that contribute to a social discussion. Nevertheless, this image is misleading. At least for our (graying and balding) genera- tions, the law is regarded as a worthy participant in American moral discourse preeminently because of its part in the ...


Toward A Tax-Based Explanation Of The Liability Insurance Crisis, Kyle D. Logue Sep 1996

Toward A Tax-Based Explanation Of The Liability Insurance Crisis, Kyle D. Logue

Articles

The so-called liability insurance crisis of 1985 and 1986 transformed the way we think about tort law and about liability insurance markets. The crisis phenomena, which first appeared in late 1984 and lasted until mid-1986, consisted of enormous increases in liability insurance premiums and alarming reductions in the availability of certain types of liability coverage. In the two principal liability lines of insurance (Other Liability and Medical Malpractice), premiums increased by hundreds (in some cases thousands) of percentage points in a matter of months. At the same time, the availability of liability insurance contracted sharply. The liability policies that were ...


Intellectual Property Issues In Genomics, Rebecca S. Eisenberg Aug 1996

Intellectual Property Issues In Genomics, Rebecca S. Eisenberg

Articles

Controversy over intellectual property rights in the results of large-scale cDNA sequencing raises intriguing questions about the roles of the public and private sectors in genomics research, and about who stands to benefit (and who stands to lose) from the private appropriation of genomic information. While the US Patent and Trademark Office has rejected patent applications on cDNA fragments of unknown function from the National Institutes of Health, private firms have pursued three distinct strategies for exploiting unpatented cDNA sequence information: exclusive licensing, non-exclusive licensing and dedication to the public domain.


Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg Jan 1996

Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg

Articles

This article revisits the logical and empirical basis for current government patent policy in order to shed light on the competing interests at stake and to begin to assess how the system is operating in practice. Such an inquiry is justified in part by the significance of federally-sponsored research and development to the overall U.S. research effort. Although the share of national expenditures for research and development borne by the federal government has declined since 1980, federal funding in 1995 still accounted for approximately thirty-six percent of total national outlays for research and development' and nearly fifty-eight percent of ...


Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining Jan 1996

Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining

Articles

The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.


Faculty Spotlight - Kyle D. Logue, Kyle D. Logue Jan 1996

Faculty Spotlight - Kyle D. Logue, Kyle D. Logue

Articles

Most of my teaching and research efforts are currently spent in two general fields of law - taxation and insurance. Which raises an interesting question: Why would a rational person decide to devote a good portion of his academic career to areas of law that many people - lawyers and nonlawyers alike - find painfully boring and unreasonably complicated? The ta and insurance lawyers in the audience, of course, already know the answer - that ta ation and insuran e are e ceptionally interesting topics and that, if one wants to understand how the real world works (in particular, the world of commerce), one ...


Physician Assisted Suicide: A Bad Idea, Yale Kamisar Jan 1996

Physician Assisted Suicide: A Bad Idea, Yale Kamisar

Articles

It would be hard to deny that there is a great deal of support in this country - and ever-growing support - for legalizing physician-assisted suicide (PAS). Why is this so? I believe there are a considerable number of reasons. I shall discuss five common reasons - and explain why I do not find any of them convincing.


It Started With Quinlan: The Ever Expanding 'Right To Die', Yale Kamisar Jan 1996

It Started With Quinlan: The Ever Expanding 'Right To Die', Yale Kamisar

Articles

Few rallying cries sound more straightforward than the "right to die"-but few are more fuzzy or more misunderstood. This becomes all too evident when comparing the right-to-die decision handed down by the U.S. Ninth Circuit Court of Appeals earlier this month and the New Jersey Supreme Court's decision in the Karen Ann Quinlan case twenty years ago. At different times, the "right to die" has embraced significantly different rights. On March 6, in Compassion in Dying v. Washington State, the Ninth Circuit held that because a Washington state statute prohibiting assisted suicide prevents physicians from providing assistance ...


Rule 23: Challenges To The Rulemaking Process (Symposium: The Institute Of Judicial Administration Research Conference On Class Actions), Edward H. Cooper Jan 1996

Rule 23: Challenges To The Rulemaking Process (Symposium: The Institute Of Judicial Administration Research Conference On Class Actions), Edward H. Cooper

Articles

Three decades have elapsed since Rule 23 of the Federal Rules of Civil Procedure last underwent revision. Taking a cue from proposed amendments prepared by the Civil Rules Advisory Committee, Professor Cooper asks whether now is the appropriate time to revise Rule 23. In this Articl e he identifis three potential "big changes" to the Rule. subsantially curtailing class actions; accommodating the needs of mass-tort actions; and recognizing the class as an entity, distinct from Its representatives. After outlining and critiquing the Advisory Committee's draf4 Professor Cooper raises a host of questions about many aspects of Rule 23 and ...


Telling The Story Of The Hughes Court, Richard D. Friedman Jan 1996

Telling The Story Of The Hughes Court, Richard D. Friedman

Articles

When Justice Oliver Wendell Holmes, Jr., died in 1935, he left the bulk of his estate to the United States Government. This gift, known as the Oliver Wendell Hnlmes Devise, sat in the Treasury for about twenty years, until Congress set up a Presidential Commission to determine what to do with it. The principal use of the money has been to fund a multivolume History of the United States Supreme Court. The history of the project itself has not always been a happy one, for some of the authors have been unable to complete their volumes. Among them was one ...


Intellectual Property At The Public-Private Divide: The Case Of Large-Scale Cdna Sequencing, Rebecca S. Eisenberg Jan 1996

Intellectual Property At The Public-Private Divide: The Case Of Large-Scale Cdna Sequencing, Rebecca S. Eisenberg

Articles

The Human Genome Project provides fertile ground for studying the role of intellectual property at the wavering boundary between public and private research science. It involves a major commitment of both public and private research funds in an area that is of significant interest both to research scientists working in university and government laboratories and to commercial firms. It thus provides a wealth of new scientific discoveries that are simultaneously potential candidates for commercial development and inputs into further research. Its obvious implications for human health raise the stakes of getting the balance between private property and public access right ...


What If? The Legal Consequences Of Marriage And The Legal Needs Of Lesbian And Gay Male Couples, David L. Chambers Jan 1996

What If? The Legal Consequences Of Marriage And The Legal Needs Of Lesbian And Gay Male Couples, David L. Chambers

Articles

Laws that treat married persons in a different manner than they treat single persons permeate nearly every field of social regulation in this country - taxation, torts, evidence, social welfare, inheritance, adoption, and on and on. In this article I inquire into the patterns these laws form and the central benefits and obligations that marriage entails, a task few scholars have undertaken in recent years. I have done so because same-sex couples, a large group not previously eligible to marry under the laws of any American jurisdiction, may be on the brink of securing the opportunity to do so in Hawaii ...


Reply To Daniel Polsby (Symposium: The New York Death Penalty In Context), Samuel R. Gross Jan 1996

Reply To Daniel Polsby (Symposium: The New York Death Penalty In Context), Samuel R. Gross

Articles

I'd like to offer a few words in response to Professor Polsby's articulate, forceful and amusing essay in favor of capital punishment.


Judicial Selection In Michigan - Time For A Change?, John W. Reed Jan 1996

Judicial Selection In Michigan - Time For A Change?, John W. Reed

Articles

How are we to choose those who judge us? To whom do we entrust the responsibility of protecting our liberties and the power to determine our rights and liabilities? We look for men and women of integrity, diligence, legal ability, and judicial temperament, chosen by methods that balance judicial independence and public accountability.1


The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner Jan 1996

The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner

Articles

The Uniform Law Commission' promulgated a revised version of Article II of the Uniform Probate Code (UPC or Code) in 1990, and approved a set of technical amendments in 1993. As Director of Research and Chief Reporter for the Joint Editorial Board for the Uniform Probate Code (Board)2 and reporter for the UPC Article II drafting committee, I was privileged to serve as the principal drafter of these provisions. UPC Article II deals with the substantive rules governing donative transfers - intestacy; spouse's elective share; execution, revocation, and revival of wills; rules of construction for wills and other donative ...


On Becoming A Law Professor, Terrance Sandalow Jan 1996

On Becoming A Law Professor, Terrance Sandalow

Articles

Thirty-five years ago, when I first joined a law faculty, only one job description existed for law professors, that for the conventional classroom teacher. In the years since, the opportunities available to lawyers interested in teaching have become a bit more varied. In addition to conventional classroom teachers, a growing number of law teachers are employed by law schools to provide what I shall somewhat misleadingly call clinical instruction.1 Although these comments are addressed mainly to men and women interested in classroom teaching, a few lines about clinical teaching may be in order because the initial question for anyone ...


The Trouble With Hairdressers, Donald J. Herzog Jan 1996

The Trouble With Hairdressers, Donald J. Herzog

Articles

Why should hairdressers, of all unlikely candidates, have come to exemplify equality, to be a cultural obsession of sort? Suffice it to say that hairdressers happened to occupy a social position that made it possible to demonize them.


The Rhythms Of Hope And Disappointment In The Language Of Judging (St. John's University School Of Law: Rededication Symposia), James Boyd White Jan 1996

The Rhythms Of Hope And Disappointment In The Language Of Judging (St. John's University School Of Law: Rededication Symposia), James Boyd White

Articles

I want to talk today about a certain aspect or dimension of the language of judging. From one point of view the quality I mean can be seen as a kind of idealism inherent in legal lan­guage; from another, as a kind of fundamental hypocrisy; from still another, as a simultaneously tragic and comic element in le­gal life.


The 'Right To Die': On Drawing (And Erasing) Lines, Yale Kamisar Jan 1996

The 'Right To Die': On Drawing (And Erasing) Lines, Yale Kamisar

Articles

Until this year, no state or federal appellate court had ever held that there was a right to assisted suicide no matter how narrow the circumstances or stringent the conditions. In 1996, however, within the span of a single month, two federal courts of appeals so held; in an 8-3 majority of the Ninth Circuit (sitting en banc) in Compassion in Dying v. Washington and a three-judge panel of the Second Circuit in Quill v. Vacco. What heartened proponents of a right to physician-assisted suicide even more, and pleased those resistant to the idea even less, was that the two ...


Internationale Handelsgessellschaft Mbh V.Einfuhrund Vorratsstelle Für Getreide Und Futtermittel (Favorite Case Symposium), James E. Krier Jan 1996

Internationale Handelsgessellschaft Mbh V.Einfuhrund Vorratsstelle Für Getreide Und Futtermittel (Favorite Case Symposium), James E. Krier

Articles

The idea of a "favorite judicial opinion" had never occurred to me until the Texas Law Review planted it in my head; the Journal of the American Dental Association could as well have asked me to express some sentiments about my favorite toothache. I was at a loss to think of even a single candidate for what, until the event, I had apparently regarded as a nonexistent office. Why then did I decide to accept the Review's invitation? The answer is, in a word, curiosity: Never mind that the editors of a law review in Texas wanted to know ...


Bouquets For Jerry Israel, Yale Kamisar Jan 1996

Bouquets For Jerry Israel, Yale Kamisar

Articles

As it turned out, of those asked to write a few words for an issue of the Michigan Law Review honoring Jerry Israel, I was the last to do so. And when I submitted my brief contribution to the Law Review I took the liberty of reading what the four others who paid tribute to Jerry had written. As a result, I feel like the fifth and last speaker at a banquet who listens to others say much of what he had planned to say.


Meaning In The Life Of The Lawyer, James Boyd White Jan 1996

Meaning In The Life Of The Lawyer, James Boyd White

Articles

First let me say what a pleasure it is to be here on such an occasion. Dean Kronman is an old and valued friend, and I am very glad to be able to visit your school, of which I have heard many good things. In the remarks that follow I shall respond to Dean Kronman's eloquent and elegiac account of "civility" in our culture, and in the law, not so much by marking agreement or disagreement as by offering a few loosely connected reflections on the topics he raises.


The Cosmological Question: A Response To Milner S. Ball's 'All The Company Of Heaven', Joseph Vining Jan 1996

The Cosmological Question: A Response To Milner S. Ball's 'All The Company Of Heaven', Joseph Vining

Articles

We do not disagree, and I do not doubt, that legal processes are sources of injustice, violent oppression, crushing of the spirit, destruction of lives, actual death. I have only to look at The Trial1 again. Nor do we disagree that there are strings of words, statements, put out by officials, lawyers, and lawyer-academics, often called "rules," that cannot be taken into oneself and that by their very nature evoke manipulation in response, avoidance if they cannot be ignored. In their name violent imposition of pure will occurs all the time, and power is exercised by those who can secure ...


Walter Trinkaus, Grace C. Tonner Jan 1996

Walter Trinkaus, Grace C. Tonner

Articles

I first met Walter Trinkaus as a third-year law student in his Remedies II class at Loyola. We quickly learned that Walter's class was not simply a study of cases but a series of stories taken from his many experiences as a lawyer. Walter's stories revealed much more than the law of remedies; they showed us how to effectively represent clients, how to properly treat each other, and how to practice law ethically. Walter also helped us put our first two years of law school in perspective because he placed a human face on the hypothetical problems of ...


An Epilogue To The Age Of Pound, Thomas A. Green Jan 1996

An Epilogue To The Age Of Pound, Thomas A. Green

Articles

Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.


The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross Jan 1996

The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross

Articles

As the Supreme Court has said, time and again, death is different: It is "different in kind from any other punishment imposed under our system of criminal justice;"1 it "differs more from life imprisonment than a 100-year sentence differs from one of only a year or two;"' 2 and so forth. Traditionally, this observation has justified special procedural protections for capital defendants. Justice Harlan put it nicely nearly forty years ago: "I do not concede that whatever process is 'due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a ...


Capture And Counteraction: Self- Help By Environmental Zealots (Allen Chair Symposium 1996: The Future Of Environmental And Land-Use Regulation), James E. Krier Jan 1996

Capture And Counteraction: Self- Help By Environmental Zealots (Allen Chair Symposium 1996: The Future Of Environmental And Land-Use Regulation), James E. Krier

Articles

Self-help is a largely neglected topic in American legal studies.1 With the exception of a survey by a group of law students published a dozen years ago,2 there appears to be little, if anything, in our legal literature that confronts the subject in a systematic way.3 This is so, at least, if one defines self-help as I do. To me, the term refers to any act of bypassing the formal legal system in order to get what one wants.


Rights Of Subrogation In Letters Of Credit Transactions, James J. White Jan 1996

Rights Of Subrogation In Letters Of Credit Transactions, James J. White

Articles

The past twenty years have seen more than a dozen cases, in which parties to letter of credit transactions have sought subrogation to the rights of the person they have paid or to the rights of the persons on behalf of whom, they have acted.' The most obvious case arises when the issuer of a standby letter of credit pays a beneficiary on a debt that is owed to the beneficiary by a bankrupt applicant. Having failed to take 'collateral from the applicant, the issuer seeks to be subrogated to the security interest of the beneficiary. Failing subrogation, the issuer ...


Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold Jan 1996

Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold

Articles

In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less ...


Class Action Rule Changes: A Midpoint Report, Edward H. Cooper Jan 1996

Class Action Rule Changes: A Midpoint Report, Edward H. Cooper

Articles

This a midpoint progress report of the Reporter on current proposals to amend the class action rule, Rule 23 of the Federal Rules of Civil Procedure. In part, it is one of many calls for help. The proposed amendments have been published for comment. It is important that the rulemakers hear from as many interested observers as possible. One of the pitfalls of the comment process - at least one of the pitfalls that the rulemakers like to believe in - is that there are many observers who believe that the rulemakers have got it right, and do not need to be ...