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Articles 1 - 30 of 34
Full-Text Articles in Law
It's A Blessing, Douglas E. Abrams
Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong
Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong
Faculty Publications
This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention …
Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz
Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz
Faculty Publications
Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your …
Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz
Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz
Faculty Publications
Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it …
What The Hein Decision Can Tell Us About The Roberts Court And The Establishment Clause, Carl H. Esbeck
What The Hein Decision Can Tell Us About The Roberts Court And The Establishment Clause, Carl H. Esbeck
Faculty Publications
This extended essay plays off the Supreme Court's recent decision in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause. While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v. Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach …
The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch
The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch
Faculty Publications
Lotteries are immensely popular. Players are willing to give the organizer a large monetary cut of every ticket purchase in return for a chance at a jackpot. In some ways, our current patent system operates as a lottery as well. Most patents are relatively worthless, while a few are highly valuable. Reaching the major payout of a highly valuable patent takes perseverance in the face of tremendous uncertainty. Like lottery players, small entrepreneurial companies and individuals have shows signs of bounded rationality. In particular, what I call the patent lottery effect is associated with the phenomena of potential innovators overweighting …
Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz
Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz
Faculty Publications
This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings and consumers' …
Trading In The Marketplace Of Ideas: Letters-To-The-Editor And Op-Ed Articles (Part I), Douglas E. Abrams
Trading In The Marketplace Of Ideas: Letters-To-The-Editor And Op-Ed Articles (Part I), Douglas E. Abrams
Faculty Publications
No abstract provided.
Knowing Which Deanship Is The Right One, R. Lawrence Dessem
Knowing Which Deanship Is The Right One, R. Lawrence Dessem
Faculty Publications
In this Article, I elaborate on this subject and suggest ways in which the dean candidate can avoid the poor fit that might lead to a deanship that is unsatisfactory, either for her as dean or for the law school that otherwise might hire her. In order to maximize the chance of a good fit between the dean candidate and law school, the candidate should (1) carefully plan her law school dean search; (2) conduct thorough discovery concerning schools of potential interest during the search process; (3) be candid and open during the interview process; and (4) take time to …
Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton
Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton
Faculty Publications
Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children …
Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz
Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz
Faculty Publications
This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article …
America's Founding Editors, Douglas E. Abrams
America's Founding Editors, Douglas E. Abrams
Faculty Publications
No abstract provided.
The Sounds Of Silence: American Criminal Justice Policy In Election Year 2008, Frank O. Bowman Iii
The Sounds Of Silence: American Criminal Justice Policy In Election Year 2008, Frank O. Bowman Iii
Faculty Publications
One of the striking features of the 2008 election cycle has been the absence of crime as a national political issue. Nobody has declared metaphorical war on any type of crime, run an ad about the depredations of a parolee, or even promised 100,000 cops. It may simply be that for a country embroiled in two nonmetaphorical foreign wars and deeply nervous about the state of the economy, crime is a second-order concern. It could be that the big drop in crime of all types throughout the 1990s has made the issue seem less pressing. Whatever the explanation, things are …
The Application Of Rfra To Override Employment Nondiscrimination Clauses Embedded In Federal Social Services Programs, Carl H. Esbeck
The Application Of Rfra To Override Employment Nondiscrimination Clauses Embedded In Federal Social Services Programs, Carl H. Esbeck
Faculty Publications
General federal employment nondiscrimination legislation permits religious organizations to take religion into account when making employment decisions. However, some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on recipients of program grants. And a few of these embedded clauses require that grantees (including religious grantees) not discriminate in employment on the basis of religion. This extended essay demonstrates how the Religious Freedom Restoration Act of 1993 overrides these employment nondiscrimination clauses when applied to faith-based social service grantees. Not only is this the conclusion of the U.S. Department of Justice in its policy announced …
We Are The Products Of Editing, Douglas E. Abrams
We Are The Products Of Editing, Douglas E. Abrams
Faculty Publications
No abstract provided.
An Appreciation Of Marc Galanter's Scholarship, John M. Lande
An Appreciation Of Marc Galanter's Scholarship, John M. Lande
Faculty Publications
This brief essay highlights three of Marc Galanter's works to illustrate qualities that seem especially worth emulating. Galanter's classic article, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, focuses on how the legal system actually operates in daily life and challenges a conventional wisdom that simply providing have-nots with more lawyers would substantially reduce inequality. The article is particularly relevant to the dispute resolution field, focusing on the vast majority of legally-oriented behavior that occurs outside of court. It distinguishes truly private dispute resolution (such as self-help, withdrawal from relationships, and intra-group processes) from settlement …
Resuscitating Hospital Enterprise Liability, Philip G. Peters Jr.
Resuscitating Hospital Enterprise Liability, Philip G. Peters Jr.
Faculty Publications
No tort reform has more potential to improve the quality of medical care and to reduce the frequency of patient injuries than exclusive hospital enterprise liability. Hospital enterprise liability would make hospitals liable for all patient injuries occurring in the hospital that are the product of provider negligence, regardless of the independent contractor status of the providers. In its "exclusive" form, enterprise liability would also eliminate the personal liability of individual physicians and nurses. Exclusive hospital enterprise liability has the potential to revive the dormant deterrent power of tort law. The reasons are simple. Unlike individual physicians, hospitals are experience-rated …
Four Lessons From The Whole Foods Case, Thom Lambert
Four Lessons From The Whole Foods Case, Thom Lambert
Faculty Publications
One of the most maligned antitrust decisions in history involved a merger of grocery store chains. Indeed, even those voices inclined toward substantial antitrust intervention believe the U.S. Supreme Court erred in its 1966 Von's Grocery decision, which condemned the merger of the third- and sixth-largest grocery store chains in Los Angeles. For example, the president of the reliably interventionist American Antitrust Institute conceded that the Supreme Court "probably went too far" and acknowledged that "if Von's Grocery had remained the rule, all of our industries would be highly fragmented and consumers would have lost out on many cost-cutting efficiencies." …
Plain-English Drafting For The 'Age Of Statutes', Douglas E. Abrams
Plain-English Drafting For The 'Age Of Statutes', Douglas E. Abrams
Faculty Publications
No abstract provided.
Services As Capital Contributions: Understanding Kovacik V. Reed, Royce De R. Barondes
Services As Capital Contributions: Understanding Kovacik V. Reed, Royce De R. Barondes
Faculty Publications
This essay examines the capital accounting of Kovacik v. Reed, leading authority addressing allocation of losses between a partner who contributed only property and another who contributed only services. Kovacik posits that such parties having agreed to share profits equally have implicitly agreed their contributions were of equal value. This essay shows that such an agreement would not produce the result Kovacik reaches. The Kovacik result is instead produced by the following implausible implicit agreement between the parties: The value of the services provided by the services partner to be treated as a capital contribution equals the amount the partnership …
Card Check Recognition: New House Rules For Union Organizing?, Rafael Gely, Timothy D. Chandler
Card Check Recognition: New House Rules For Union Organizing?, Rafael Gely, Timothy D. Chandler
Faculty Publications
A significant policy debate has been occurring regarding union organizing methods in the United States. This debate focuses on the appropriateness of granting union recognition based on majority support as demonstrated by union authorization card signatures, also known as “card checking.” Critics describe the practice as anathema to basic democratic principles and accuse unions of wanting to deal from the bottom of the deck to secure undeserved representation of employees. Proponents of card check recognition argue that reliance on National Labor Relations Board (“NLRB”) organizing procedures fails to protect employees' rights to organize, and forces unions to compete against a …
Antitrust (Over-?) Confidence, Thom Lambert, Joshua D. Wright
Antitrust (Over-?) Confidence, Thom Lambert, Joshua D. Wright
Faculty Publications
On October 5, 2007, a group of antitrust scholars convened on Chicago's Near North Side to discuss monopolization law. In the course of their freewheeling but fascinating conversation, a number of broad themes emerged. Those themes can best be understood in contrast to a body of antitrust scholarship that was born six miles to the south, at the University of Chicago. Most notably, the North Side discussants demonstrate a hearty confidence in the antitrust enterprise - a confidence that is not shared by Chicago School scholars, who generally advocate a more modest antitrust. As scholars who are more sympathetic to …
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John M. Lande
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John M. Lande
Faculty Publications
This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate.The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, settlement …
Responsibility Status Of The Psychopath: On Moral Reasoning And Rational Self-Governance, Paul J. Litton
Responsibility Status Of The Psychopath: On Moral Reasoning And Rational Self-Governance, Paul J. Litton
Faculty Publications
This article does not aim to describe the opposing views and argue for one over the other. Rather, I propose to deflate the debate as far as possible, attempting to reduce the area of disagreement. Meaningful disagreement exists only if there are, or could be, agents who have an undiminished capacity for practical reasoning or rational self-governance, yet truly are incapable of moral reasoning. However, I suggest that the capacity for rational self-governance entails the capacity to comprehend and act on moral considerations; thus, to the extent that an individual truly is incapable of grasping moral reasons, we should expect …
Privacy And Funeral Protests, Christina E. Wells
Privacy And Funeral Protests, Christina E. Wells
Faculty Publications
This article examines the free speech implications of funeral protest statutes. Enacted in response to the Westboro Baptist Church, whose members protest at funerals to spread their antigay message, such statutes restrict a broad array of peaceful expressive activity. This Article focuses on the states’ interest underlying these statutes - protecting mourners’ right to be free from unwanted intrusions while at funeral services. Few would argue against protecting funeral services from intrusive protests. These statutes, however, go far beyond that notion and protect mourners from offensive, rather than intrusive, protests. As such, they do not conceive of privacy as protection …
Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Lidsky
Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Lidsky
Faculty Publications
The United States Supreme Court has interpreted the First Amendment to accord a measure of protection to outright lies. This essay seeks to explain why. Using Holocaust denial as an example of verifiably false speech, this essay poses the question of whether such speech poses a more serious danger than First Amendment jurisprudence traditionally has acknowledged. This essay also probes the unintended consequences of governmental attempts to impose criminal punishment on lies.
Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii
Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii
Faculty Publications
The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far …
Maybe Deaning Is Not For You, R. Lawrence Dessem
Maybe Deaning Is Not For You, R. Lawrence Dessem
Faculty Publications
Several years ago, I wrote an article for the second of these Leadership in Legal Education Symposia entitled, “Top Ten Reasons to Be a Law School Dean.” In that article, I offered ten very good reasons why someone might consider becoming a law school dean. I still believe that these ten reasons, and more, should cause faculty and others to consider service as dean. I continue to find my own service as dean rewarding, challenging, and (most days!) fun. However, having been asked to talk recently about why one might not want to consider deaning has led me to write …
Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande
Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande
Faculty Publications
This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …
The 60th Anniversary Of The Everson Decision And America's Church-State Proposition, Carl H. Esbeck
The 60th Anniversary Of The Everson Decision And America's Church-State Proposition, Carl H. Esbeck
Faculty Publications
Sixty years ago the U.S. Supreme Court handed down Everson v. Board of Education of Ewing Township, which for the first time incorporated the Establishment Clause through the Fourteenth Amendment and made it binding on state and local governments. The case marks the beginning of the Court's modern era with respect to church-state relations. In Everson, the Justices said that the restraints on federal power represented by the Establishment Clause were the same as the ideas that emerged from the disestablishment struggles in the several states, with special attention to the Virginia experience. The disestablishment effort in the states, which …