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Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, In Symposium, The John W. Wade Conference On The Third Restatement Of Torts, Richard W. Wright Dec 2001

Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, In Symposium, The John W. Wade Conference On The Third Restatement Of Torts, Richard W. Wright

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Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying ...


International Red Cross Must Include Israel, Kenneth Lasson Nov 2001

International Red Cross Must Include Israel, Kenneth Lasson

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Israel's corresponding relief agency, the Mogen David Adom, has provided emergency services to countries all over the world since 1939, and it meets or surpasses every other standard for IFRC membership. Yet Israel remains the only nation left out of the 178- country federation. Why?

An IFRC spokesman says that it is "governments, not the federation, that give emblems the protective force of international law," and that "governments" are preparing to adopt an additional emblem, with no religious or national connotations, to stand alongside the Red Cross and the Red Crescent, one that Israel could adopt as its own ...


Why Are We So Reluctant To "Execute" Microsoft?, Robert H. Lande Nov 2001

Why Are We So Reluctant To "Execute" Microsoft?, Robert H. Lande

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On June 28, 2001, the D.C. Court of Appeals held that Microsoft has violated the antitrust laws repeatedly, relentlessly, and over a multi-year period. The court ruled eight separate times that Microsoft engaged in conduct that illegally maintained its monopoly in PC operating systems. Despite these strongly worded conclusions concerning Microsoft’s liability, the court was extremely cautious when it considered whether to break up the company. It held that divestiture was a “radical” remedy that should be imposed with “great caution.”


Invisible Markets Netting Visible Results: When Sub-Prime Lending Becomes Predatory, Cassandra Jones Havard Oct 2001

Invisible Markets Netting Visible Results: When Sub-Prime Lending Becomes Predatory, Cassandra Jones Havard

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In this article, I argue that Ellison's metaphor of social invisibility—the societal undervaluing of minorities—is analogous to economic invisibility—the denial of fair access to credit to minorities. I then use the metaphor of invisibility as a basis for understanding the contemporary legal problem of predatory lending, or making credit available to borrowers at unreasonably high interest rates. Disguised as credit access to high-risk, underserved borrowers, predatory lending helps to create risk by offering borrowers products that do not adequately measure risk and that are not fairly priced.


Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters Oct 2001

Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters

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This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend ...


The Perfect Caper?: Private Damages And The Microsoft Case, Robert H. Lande, James Langenfeld Oct 2001

The Perfect Caper?: Private Damages And The Microsoft Case, Robert H. Lande, James Langenfeld

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As readers of crime novels know, there are many definitions of the perfect caper. Under most, the perpetrator gets to keep its ill-gotten gains and goes unpunished. Even if the perpetrator is arrested and brought to trial, he or she still typically escapes punishment completely due to a variety of unusual circumstances. This is essentially what Professors John E. Lopatka and William H. Page are arguing about Microsoft's actions. They assert that even though Microsoft has violated the antitrust laws, it will not be made to pay for its anticompetitive conduct, at least not by private plaintiffs.


Attorney Fact-Finding, Ethical Decision-Making And The Methodology Of Law, Robert Rubinson Oct 2001

Attorney Fact-Finding, Ethical Decision-Making And The Methodology Of Law, Robert Rubinson

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This Article explores the significance, challenges, and complexities of attorney fact-finding in ethical decision-making. Almost all discourse about legal ethics, from the pedagogical to the scholarly to the practical, takes facts for granted in order to focus on issues about ethical rules. The factual dimension of ethical decision-making, however, is critical to the decision-making process and can be subjected to rigorous and systematic study. Indeed, it is lawyers in a situation who engage in ethical decision-making, and such a situation entails the assimilation and interpretation of many sources of information. Such a process necessarily includes the motivations and ambivalence of ...


Business Lawyer, Woman Warrior: An Allegory Of Feminine And Masculine Theories, Barbara Ann White Oct 2001

Business Lawyer, Woman Warrior: An Allegory Of Feminine And Masculine Theories, Barbara Ann White

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The first part of this essay is a discourse on how two of the last half century’s most influential contributions to legal thinking: Law and Economics Jurisprudence and Feminist Legal Theory, whose adherents are normally adversaries, can function synergistically to create a greater analytic power. Using business law issues as an example - historically law and economics’ terrain but recently explored by feminism - I comment on how each can unravel different knots but each standing alone leave other conundrums unresolved.

Expanding on the feminist concept of “masculine thinking,” I discuss how, just as law and economics’ analytic style (i.e ...


American Society For Reproductive Medicine Addresses Preconception Gender Selection, Valerie Gutmann Koch Jul 2001

American Society For Reproductive Medicine Addresses Preconception Gender Selection, Valerie Gutmann Koch

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No abstract provided.


Nord Issues Gene Patenting Statement, Valerie Gutmann Koch Jul 2001

Nord Issues Gene Patenting Statement, Valerie Gutmann Koch

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No abstract provided.


How To Steal A Trillion: The Uses Of Laws About Lawmaking In 2001, Charles Tiefer Jul 2001

How To Steal A Trillion: The Uses Of Laws About Lawmaking In 2001, Charles Tiefer

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How did Congress pass President Bush's 2001 trillion-dollar tax cut pass without the necessary consensus shape and without the 60 Senate votes required to overcome resistance? How was the House able to give "fast track" treatment to laws designed to implement future trade deals? How was the 2001 Congress able to reject a new workplace ergonomic rule that would otherwise become law? In 2001, American lawmakers passed laws to make controversial laws, forcing the important question about whether laws about lawmaking actually serve the public interest.

In this article, the author explores the constitutional limits on laws about lawmaking ...


Last Gasp Estate Planning: The Formation Of Family Limited Liability Entities Shortly Before Death, Walter D. Schwidetzky Jul 2001

Last Gasp Estate Planning: The Formation Of Family Limited Liability Entities Shortly Before Death, Walter D. Schwidetzky

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Family limited partnerships have been popular gift and estate tax planning vehicles for many years. In recent years, family limited liability companies (LLCs) have also become common, particularly in those states that have updated their statutes to take the check-the-box regulations into account. LLCs with more than one member are usually classified as partnerships for federal income tax purposes. In a typical structure, when there is adequate planning, the donors form a limited partnership or an LLC (jointly, 'family limited liability entity' or FLLE), to which they contribute assets expected to appreciate in value. This article will focus on such ...


Rethink The Laws Relating To Fathers (Change: With The Decline In Married Mothers And Traditional Families, The Legal Image Of Dads Needs Re-Examination), Jane C. Murphy Jun 2001

Rethink The Laws Relating To Fathers (Change: With The Decline In Married Mothers And Traditional Families, The Legal Image Of Dads Needs Re-Examination), Jane C. Murphy

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This "marital presumption" permitted courts to assume a set of biological facts in the name of preserving the sanctity and stability of what was assumed to be the cornerstone of a healthy society — the traditional family of husband, wife and children. In the last decades of the 20th century, science developed paternity testing with results approaching certainty. Despite the availability of DNA testing, the marital presumption is still used in many courtrooms to answer the question of who is the legal father. What one scholar has called "the law's struggle to preserve the fiction of an older moral order ...


Legal Accountability In An Era Of Privatized Welfare, Michele E. Gilman May 2001

Legal Accountability In An Era Of Privatized Welfare, Michele E. Gilman

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When the federal welfare system was reformed in 1996, Congress devolved much of the authority over welfare delivery to the states and gave them the option of contracting out administration of their programs to private entities. Moreover, after welfare reform, enacted as the Personal Responsibility and Work Opportunity Reconciliation Act (PRA), welfare recipients are expected to work to receive benefits. This means that front-line workers must engage in intensive interpersonal counseling rather than simply confirm objective eligibility criteria and dispense checks. As a result, front-line workers have vastly increased discretion. When privatization is layered over this discretionary scheme, issues of ...


After Steel Co.: 'Hypothetical Jurisdiction' In The Federal Appellate Courts, Joan E. Steinman Apr 2001

After Steel Co.: 'Hypothetical Jurisdiction' In The Federal Appellate Courts, Joan E. Steinman

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In Steel Co. v. Citizens for a Better Environment, the United States Supreme Court, sua sponte, denounced the doctrine of "hypothetical jurisdiction," a doctrine that, in some circumstances, allowed courts to assume, arguendo, the existence of jurisdiction and to address the merit questions presented by cases. Several of the Justices distanced themselves from the denunciation, however, and despite the vociferousness of the position taken by the majority, even it found that there were exceptional circumstances in which the Court had acted properly (and presumably in which other courts would act appropriately) in assuming jurisdiction arguendo and addressing merits questions. The ...


Consumer Choice As The Ultimate Goal Of Antitrust, Robert H. Lande Apr 2001

Consumer Choice As The Ultimate Goal Of Antitrust, Robert H. Lande

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The mission of the antitrust laws need to be clarified, and this article asserts that the best way to do this is to interpret and enforce these laws in terms of consumer choice. This reformulation is necessary due to uncertainty and instability that exists in the field. This article will 1. define the consumer choice approach to antitrust or competition law and show how it differs from other approaches; 2. show that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice; 3. show that the antitrust case law embodies a concern for optimal ...


African-American Farmers And Fair Lending: Racializing Rural Economic Space, Cassandra Jones Havard Apr 2001

African-American Farmers And Fair Lending: Racializing Rural Economic Space, Cassandra Jones Havard

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This article critiques the federal policy and legislation that makes USDA a financial intermediary designed to give farmers access to credit in light of the federal class action settlement of claims between African-American farmers and USDA. The challenged statutory scheme allows locally elected farmers to make decisions regarding these low-cost loan funds. USDA's approach has both federalist and economic underpinnings. The article identifies the arguments supporting devolution of power from the federal government to local jurisdictions and examines the competing theories of information costs, transaction costs, and agency costs as they relate to USDA as a financial intermediary. Finally ...


Current Developments In Cyberspace, Eric Easton Apr 2001

Current Developments In Cyberspace, Eric Easton

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No abstract provided.


Letting Federal Unions Protest Improper Contracting-Out, Charles Tiefer Apr 2001

Letting Federal Unions Protest Improper Contracting-Out, Charles Tiefer

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In 2000 - 2001, a judicial and General Accounting Office (GAO) ruling precluded federal employee unions from protesting the government's alleged violation of the rules governing the contracting-out procedure because the parties lacked standing. These rulings illustrate how outdated procedures have insulated the government from challenge, and have become matters of particular importance as the government increases its practice of contracting-out. Although these rulings have not closed the tribunal doors to federal employee unions, they have made protests much more difficult, leaving federal employee unions without a forum to protest violations. To better serve the needs of contractors - and the ...


Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich Apr 2001

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

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The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt ...


Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson Apr 2001

Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson

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The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical element for First Amendment analysis, failed to give a definition of prior restraint. The result has been inconsistent and unpredictable application of the doctrine as well as diminished protection of free expression. This article takes the next critical step in the journey begun by Near v. Minnesota; it attempts to create a comprehensive definition of prior restraint using the principles of separation of powers. Because all three branches can create 'prior restraints,' the prevention of unconstitutional restraints will necessitate different safeguards depending on which branch ...


The Judiciary In The United States: A Search For Fairness, Independence And Competence, Stephen J. Shapiro Apr 2001

The Judiciary In The United States: A Search For Fairness, Independence And Competence, Stephen J. Shapiro

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Alexander Hamilton referred to the judiciary as “the least dangerous branch” because it could neither make nor enforce the law without help from the other two branches of government. In the years since then, however, courts and judges in the United States have assumed a much more prominent role in society. American judges preside over criminal trials and sentence those convicted, decide all kinds of civil disputes, both large and small, and make important decisions involving families, such as child custody. They have also become the primary guarantors of the civil and constitutional rights of American citizens.

The case of ...


Law Reviews And Technology: Copyright Law From Noah Webster To Tasini And The Importance Of Written Contracts, Lynn Mclain Mar 2001

Law Reviews And Technology: Copyright Law From Noah Webster To Tasini And The Importance Of Written Contracts, Lynn Mclain

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This handout from a 2001 presentation for the National Conference of Law Reviews outlines the intersection between copyright and contract law, particularly as it pertains to authors assigning the copyright of law review articles to the journal publishing the article.


Taking Legal Communications Seriously, Henry H. Perritt Jr. Mar 2001

Taking Legal Communications Seriously, Henry H. Perritt Jr.

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No abstract provided.


Towards A Hybrid Regulatory Scheme For The Internet, Henry H. Perritt Jr. Mar 2001

Towards A Hybrid Regulatory Scheme For The Internet, Henry H. Perritt Jr.

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No abstract provided.


Fred Bosselman As Participant-Observer Lawyer: The Case Of Habitat Conservation Planning, A. Dan Tarlock Mar 2001

Fred Bosselman As Participant-Observer Lawyer: The Case Of Habitat Conservation Planning, A. Dan Tarlock

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No abstract provided.


Domestic Partnership And Erisa Preemption, Jeffrey G. Sherman Mar 2001

Domestic Partnership And Erisa Preemption, Jeffrey G. Sherman

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No abstract provided.


Analysis Of U.S. Supreme Court Employment Law Decisions, Henry H. Perritt Jr. Mar 2001

Analysis Of U.S. Supreme Court Employment Law Decisions, Henry H. Perritt Jr.

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No abstract provided.


"Touchy" "Feely" -- Is There A Constitutional Difference? The Constitutionality Of "Prepping" A Passenger's Luggage For A Human Or Canine Sniff After Bond V. United States, David S. Rudstein Mar 2001

"Touchy" "Feely" -- Is There A Constitutional Difference? The Constitutionality Of "Prepping" A Passenger's Luggage For A Human Or Canine Sniff After Bond V. United States, David S. Rudstein

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No abstract provided.


Tribute To The Achievements Of Professor Fred P. Bosselman, A. Dan Tarlock Mar 2001

Tribute To The Achievements Of Professor Fred P. Bosselman, A. Dan Tarlock

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No abstract provided.