Law Commons^™

Bart Bartosic: What You See Is Not What You Get, Theodore J. St. Antoine

Articles

With "Bart" Bartosic, what you see is not necessarily what you get. Anyone even vaguely acquainted with him knows I am not talking about duplicity; on occasion, Bart can be almost painfully forthright. Nonetheless, on first meeting, most persons are likely to view him as the very soul of politesse - perhaps actually too deferential and accommodating. Yet behind that beguiling exterior can be found a backbone of cast iron, a mind like a steel trap, and (to extend the metallic figure) a willingness, when the situation demands, to be as hard as nails in dealing with either ideas or …

Clinical Realism: Simulated Hearings Based On Actual Events In Students' Lives, Samuel R. Gross

Articles

This essay describes a novel clinical format, a simulation course that is based on students' testimony about actual events in their own lives. The two main purposes of the course, however, are not novel. First, I aim to teach the students to be effective trial lawyers by instructing them in the techniques of direct examination and cross-examination and by making them sensitive to the roles of the other courtroom players: the witness, the judge, and the jury. Second, I hope to encourage the students to think about the social and ethical consequences of our method of trying lawsuits.

Kevin E. Kennedy, David L. Chambers

Articles

Our first encounter was on one of Kevin's many triumphant days during law school. Kevin, then a second year student, had advanced to the final round of the Campbell Competition, the moot court competition in which students brief and argue a case as if before the United States Supreme Court. I was one of the five "justices" who heard the case. The others were the dean and three distinguished appellate judges. Four students presented oral arguments and all were fine, but, Kevin's, the "Justices" agreed, was simply of a different order.

The Public Domain, Jessica D. Litman

Articles

This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality," …

Gideon V. Wainwright A Quarter-Century Later, Yale Kamisar

Articles

In a brief working paper sent to all conference participants, Professor Burt Neuborne suggested that we might consider several themes, among them "Gideon Celebrated," "Gideon Fulfilled," and "Gideon Betrayed." I think these are useful headings.

Reasons, Authority, And The Meaning Of 'Obey': Further Thoughts On Raz And Obedience To Law, Donald H. Regan

Articles

I recently published a long article' discussing a variety of topics from Joseph Raz's The Morality of Freedom.2 The article was part of a symposium on Raz's work in the Southern California Law Review. Raz responded' to the articles in that symposium, including my own. From a perspective which surveys the whole range of views on political philosophy, Raz's view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But …

Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine

Articles

A unifying theme of this Symposium is as old and enduring as the common law: when and how can a well-established, successful adjudicative institution be adapted to meet the demands of new and substantially different situations? There have been splendid triumphs of transference, such as Lord Mansfield's appropriation of the law merchant in the eighteenth century as a major building block of modem commercial law. There have also been embarrassing failures, like the abortive effort to transport American labor law concepts en masse into the alien British environment of the early 1970s. The common question confronting the participants in this …

Risk And Design, James E. Krier

Articles

Risk springs from uncertainty,' uncertainty invites error, and, since error can be costly, we would prefer to avoid it (provided, of course, that avoidance is not more costly yet). While there is much in the Noll and Krier article2 about judgmental error under conditions of risk and uncertainty, there is little about ways to avoid it. So avoidance-more accurately, minimization-of error costs is the topic I want to address very briefly and partially here.

Risk, Courts, And Agencies, Clayton P. Gillette, James E. Krier

Articles

Public risks are precisely the risks that have recently captured the attention of the legal community and the world at large, in no small part because they give rise to such novel problems for lawyers and such grave apprehensions among lay people. Public risks have moved the legal system to relax doctrines--regarding, for example, standards of causation and culpability, burdens of proof, sharing of liability--that were designed to deal with the private risks that once dominated the landscape. And public risks have moved lay people to intensify their demands for risk control measures. These developments suggest that public risks are …

International Copyright From An American Perspective, Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

Book Review. Judicial Rhetoric And Administrative Law, John S. Applegate

Articles by Maurer Faculty

No abstract provided.

An Economic Analysis Of The Criminal Law As A Preference-Shaping Policy, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

In this Article I provide an economic analysis of criminal law as a preference-shaping policy. I argue that in addition to creating disincentives for criminal activity, criminal punishment is intended to promote various social norms of individual behavior by shaping the preferences of criminals and the population at large. By taking into account this preference-shaping function, I explain many of the characteristics of criminal law that have heretofore escaped the logic of the economic model. It is also the preference-shaping function and the prerequisite ordering of preferences that distinguish criminal law from tort law. My analysis suggests that society will …

Nancy Cruzan And The Right To Die, George J. Annas

Faculty Scholarship

[...]the majority improperly implied that continued existence and treatment in a persistent vegetative state is either beneficial or neutral, whereas in fact "an erroneous decision not to terminate life-support robs a patient of the very qualities protected by the right to avoid unwanted medical treatment... [a] degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted.5 " Finally, Justice Brennan argued that the Missouri rules are simply out of touch with reality; people do not write elaborate documents about all the possible ways they might die and the various interventions doctors …

The Consequences Of Bulk In Our Banking Diet: Bulk Filing Of Checks And The Bank's Duty Of Ordinary Care Under The 1990 Revision To The Uniform Commercial Code When It Honors Forged Checks, Mark E. Budnitz

Faculty Publications By Year

No abstract provided.

The Uniform Child Custody Jurisdiction Act And The Problem Of Jurisdiction In Interstate Adoption: An Easy Fix, Bernadette W. Hartfield

Faculty Publications By Year

No abstract provided.

What Triggers Revlon?, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Delaware's new approach to takeover law is announced in three cases that address different aspects of management's role in the standard drama of defending against a hostile takeover. Unocal Corp. v. Mesa Petroleum Co. scripts a main act for the drama by prescribing a duty to compare the outsider's offer with the universe of other options and, if necessary, to resist the outsider within the guidelines fixed by the proportionality test. Moran v. Household International, Inc. writes a prologue by encouraging management to plan a vigorous defense that can thwart a coercive offer without damaging the company. Finally, Revlon …

The Case For Market Damages: Revisiting The Lost Profits Puzzle, Robert E. Scott

Faculty Scholarship

An old and cardinal rule of contract law requires that expectancy damages for breach of contract put the injured party in the position she would have occupied had the contract been performed. Courts and commentators have accepted this full performance compensation principle as the central objective of the expectancy remedy, pursuant to which they have developed many more precise formulas for various types of cases. But the simplicity of the full performance principle disguises substantial problems in its application. One of the least recognized of these problems is the tendency of courts and commentators to determine the contractual expectancy ex …

Essential Functional Issues In Nepalese Contract Law: A Comparison With United States Law, Tribhuban Dev Bhatta

LLM Theses and Essays

American and Nepalese contract law may be put at two ends of spectrum. The former legal system is a long parent system. This comparative study will probe some of the causes of the stasis in Nepalese contract law by examining the Contract Act, cases adjudicated under it, and related provisions of the other laws. The inquiry is restricted to certain selected areas of functional interest form a Nepalese perspective and does not purport to examine interest interrelated doctrinal or other areas with equal thoroughness. The approach throughout is to study the Anglo-American contract law on the subject and compare Nepalese …

Crisis In No-Fault Automobile Insurance, Dragana Davidovic

LLM Theses and Essays

This thesis presents an overview of no-fault automobile insurance and examines current issues in the political and policy debate surrounding insurance reform. Part I summarizes the costs of automobile accidents and describes how the tort system handles claims arising from such accidents. Part II gives an introduction to the world of insurance, explaining theoretical differences between fault and no-fault based auto insurance. Part III presents the history of various no-fault plans. Part IV describes and explains current issues in no-fault insurance. Costs, benefits, and cost-efficiency of no-fault insurance are also discussed. Since the accident prevention is a social goal as …

Rational Decisionmaking About Marriage And Divorce, Elizabeth S. Scott

Faculty Scholarship

The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing …

A Relational Theory Of Default Rules For Commercial Contracts, Robert E. Scott

Faculty Scholarship

The relationship between legal rules and the strategies that commercial parties use to deal with risk is among the most important and least understood topics in law and economics. Organizational theorists have generally confined their analyses to the nature of the firm and other permanent relationships. Academic commercial lawyers, in turn, have been far less venturesome than their corporate colleagues in applying fundamental economic insights. Not surprisingly, therefore, we know very little about the inner workings of most commercial relationships. For these reasons (and more) I applaud efforts to integrate economic insights and legal structures, exemplified by Clay Gillette's imaginative …

What's Next?: The Future Of Rico, G. Robert Blakey, John C. Coffee Jr., Paul E. Coffey, L. Gordon Crovitz

Faculty Scholarship

Opening Statement of Mr. Crovitz: Coming to the Notre Dame Law School to debate Robert Blakey on the Racketeer Influenced and Corrupt Organizations law makes me feel like Daniel approaching the lion's den. I'm tempted to offer my own prayer, "Yea, though I walk through the valley of the shadow of death, I will fear no RICO."

Women In The Aids Epidemic: A Portrait Of Unmet Needs, Arlene Zarembka, Katherine M. Franke

Faculty Scholarship

While rarely a month goes by that the topic of AIDS escapes discussion in the legal literature, a survey of legal publications reveals that the implications of AIDS for women has received scant treatment by legal commentators. Unfortunately, this neglect is not unique to the legal community, but reflects a larger societal disinterest in women with AIDS.

In fact, this epidemic looks quite different from the perspective of women. The medical, social, and legal needs of women affected by AIDS are in many ways needs that preexisted AIDS, but which have been magnified by the threat and implications of HIV …

Application Of The Cash Collateral Paradigm To The Preservation Of The Right To Setoff In Bankruptcy, Jack F. Williams

Faculty Publications By Year

No abstract provided.

Professionalism: Rekindled, Reconsidered Or Reformulated?, Nancy J. Moore

Faculty Scholarship

It is increasingly commonplace for bar officials and others to decry what they see as a decline in "professionalism" among lawyers in recent years. For example, in 1984, former Chief Justice Warren Burger gave a speech to an ABA meeting in Las Vegas in which he chastised some members of the profession for taking their freedom to advertise as a "release from all professional restraints," as they use the "same modes of advertising as other commodities from mustard, cosmetics and laxatives to used cars.' 1 Catchy phrases, attractive well-dressed lawyers, and special rates on lossleader items are but some of …

Introduction: Prospects For The Rule Of Law, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The year 1991 marks the bicentennial of the American Bill of Rights. For the nation's legal community, including the Federalist Society, this event has provided the occasion for spirited reconsideration of many of the most important questions asked, and answers provided, by our Constitution's framers concerning the eternal problem of securing and maintaining ordered liberty. Of course, American scholars are free to speculate about these questions from within the comfort of a functioning market order and a stable constitutional system. The respective peoples of the emerging democracies of Central and Eastern Europe have no such luxury. In the aftermath of …

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

West German Constitutionalism And Church-State Relations, Donald P. Kommers

Journal Articles

The complex structure of church-state relations in West Germany arises out of numerous provisions of the Basic Law that combine features of both separation and accommodation. The Basic Law's separationist features are expressed in various guarantees of religious liberty and in the ban on the establishment of a state church. Its accommodationist features appear in constitutional provisions on religious education as well as in articles, taken over from the Weimar Constitution, that confer upon the established churches a special juridical status enjoyed by no other nongovernmental entity. The arguably diverse goals of the religion clauses are difficult to reconcile, creating …

Ancillary Discovery To Prove Denial Of Justice, Roger P. Alford

Journal Articles

Today foreign investors have a new and powerful weapon to challenge denial of justice. Bilateral investment treaties (BITs) require “fair and equitable treatment” consistent with customary international law, including “the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principles of due process embodied in the principle legal systems of the world.” Those treaties also create a private right of action, empowering investors with the right to initiate international arbitral proceedings directly against the host State. BITs provide the substance and the means for the effective review of judicial behavior. These treaties do …

Rings And Promises, Margaret F. Brinig

Journal Articles

The diamond ring rapidly changed from a relatively obscure token of affection to what amounted to an American tradition. It is customary to explain such a shift in demand in terms of an increase in income, a change in relative prices, or a change in tastes. This assumes a stable legal setting that contracts are enforceable. But if the enforceability of a contract is problematic, what formerly was a relatively costly (hence unused) form of private ordering may become more viable (Kronman: 5). This paper looks at the change in America's demand for diamonds during the period 1930-1985, not as …