Law Commons^™

Acronyms, Douglas E. Abrams

Faculty Publications

No abstract provided.

Side Letters, Incorporation By Reference And Construction Of Contractual Relationships Memorialized In Multiple Writings, Royce De R. Barondes

Faculty Publications

This article will examine the legal principles applicable to contractual relationships memorialized in multiple writings.

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech …

Teacher, Mentor, Friend, Leader, Richard C. Reuben, Margaret L. Shaw

Faculty Publications

It is a rare person who through his own thoughts and efforts can truly be said to have changed this country, and the world, for the better. Fewer still do it with humility and grace. Frank E. A. Sander is one such transformative figure, a man who for nearly 40 years has nurtured the field of dispute resolution that today is credited as being one of the most significant shifts in American law. Inspired by his ideas and efforts, the resolution of legal problems is faster, more humane, more effective, and less costly for those in the United States and …

Bad Faith At Middle Age: Comments On The Principle Without A Name (Yet), Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth-century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance industry, …

Reducing The Discount Rate, Ben L. Trachtenberg

Faculty Publications

This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that …

Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong

Faculty Publications

With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and …

The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi

Faculty Publications

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state …

Financial Decision-Making For Adults Lacking The Capacity To Make Their Own Decisions, David M. English

Faculty Publications

A significant percentage of individuals lack sufficient mental capacity to make financial, health, and personal-care decisions for at least some period during their lifetimes. For those who die suddenly, that period may be brief. For those with Alzheimer’s Disease or other forms of dementia, the period of incapacity may last many years.

Bullying Victimization As A Disability In Public Elementary And Secondary Education, Douglas E. Abrams

Faculty Publications

This article discusses two reasons why likening bullying victimization to an educational disability makes sense. First, face-to-face bullying and cyberbullying impose on student victims the sort of educational deprivation that the federal Individuals with Disabilities Education Act (IDEA) addresses in the disabilities arena. Second, today’s belated public sensitivity to school bullying victims resembles the belated public sensitivity to students with disabilities that led to passage of the IDEA in 1975.

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

How Not To File A Complaint, Douglas E. Abrams

Faculty Publications

No abstract provided.

Editor's Observations: It's Alive! The Federal Booker-Fix Debate Sirs, Frank O. Bowman Iii

Faculty Publications

Seven years have passed since Justice Ginsburg do-si-doed from the merits majority to the remedial majority in Booker and transformed the Federal Sentencing Guidelines into an advisory system.' And despite the logical absurdity of the Scalian Sixth Amendment doctrine that produced this outcome,' and despite the expectation of folks like me that this marriage of fish and fowl could not long survive, it survives. What is more, a great many people whose opinion matters now claim to love it-or at least to like it well enough to want to keep it for the foreseeable future. Thus, the outburst of legislative …

International Trademark Protection And Global Public Health: A Just-Compensation Regime For Expropriations And Regulatory Takings, Sam F. Halabi

Faculty Publications

Lawmakers in developed and developing countries are expanding legal protections for trademarks – words, combinations of colors, signs, letters, numerals, figurative elements and designs meant to convey the origin and quality of firms’ goods or services. The purported rationales underlying trademark protection are promotion of competition and reduction of consumers’ information costs. Trademark law promotes competition by giving trademark holders an incentive to invest in the quality of goods or services and then associate that quality with a relatively easy-to-identify brand, mark or logo. The law punishes private actors who attempt to free-ride on the goodwill built by the trademark …

Principles For Designing Negotiation Instruction, John M. Lande, Ximena Bustamante, Jay Folberg, Joel Lee

Faculty Publications

This article analyzes recommendations in the Rethinking Negotiation Teaching (RNT) series. Instructors teaching negotiation and other dispute resolution subjects have long had a hard time trying to cover everything they would like in their courses. The RNT project has documented (and, to some extent, stimulated) a growing profusion of ideas and techniques for teaching negotiation, which has multiplied instructors’ dilemmas in designing their courses. Since instructors cannot teach everything they would like, this article suggests some general principles for making decisions about what to include and how to conduct these courses. Clearly, there is no single right or best way …

Does Class Arbitration "Change The Nature" Of Arbitration? Stolt-Nielsen, At&T And A Return To First Principles, S. I. Strong

Faculty Publications

In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., the United States Supreme Court stated that class arbitration “changes the nature of arbitration,” an idea that was also reflected in the Supreme Court’s subsequent decision in AT&T Mobility LLC v. Concepcion. Certainly class proceedings do not resemble the traditional view of arbitration as a swift, simple and pragmatic bilateral procedure with few witnesses, documents or formalities, but do these types of large-scale disputes violate the fundamental nature of the arbitral procedure? This article answers that question by considering the jurisprudential nature of arbitration and determining whether and to what extent class arbitration …

The Canon At The Water's Edge, Thomas B. Bennett

Faculty Publications

What motivates substantive presumptions about how to interpret statutes? Are they like statistical heuristics that aim to predict Congress's most likely behavior, or are they meant to protect certain underenforced values against inadvertent legislative encroachment? These two rationales, fact-based and value-based, are the extremes of a continuum. This Note uses the presumption against extraterritoriality to demonstrate this continuum and how a presumption can shift along it. The presumption operates to diminish the likelihood that a federal statute will be read to extend beyond the borders of the United States. The presumption has been remarkably stable for decades despite watershed changes …

Getting Away With Murder (Most Of The Time): Civil War Era Homicide Cases In Boone County, Missouri, Frank O. Bowman Iii

Faculty Publications

Much of the modem American legal process is dependent, not on particular substantive or procedural rules, but on legal and societal infrastructure that we tend to take for granted. To give the simplest example, appellate practice in Missouri (and elsewhere) was stunted until the late 1880s by the absence of court reporters who could create the verbatim trial records upon which a detailed review for error depends. The study of actual cases decided by juries and judges - law in action, rather than law in theory - owes its fascination to the insights it gives into what people really believe …

A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck

Faculty Publications

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required. Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during …

Teaching Students To Negotiate Like A Lawyer, John M. Lande

Faculty Publications

Some important stages might include: (1) initial client interview, (2) negotiation of a retainer agreement, (3) developing good working relationships with counterpart lawyers, (4) conducting factual investigation and/or legal research, (5) working with counterparts to plan the negotiation process, (6) resolving discovery disputes, (7) preparing client for negotiations, (8) conducting an ultimate negotiation, (9) engaging a mediator and mediating the matter, and (10) drafting a settlement agreement. This essay suggests that by using both single-stage and multi-stage simulations, instructors can better prepare students for negotiations that they will actually conduct in practice. These suggestions grow out my book, Lawyering with …

Title Vii Works - That's Why We Don't Like It, Chuck Henson

Faculty Publications

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …

Player Safety In Youth Sports: Sportsmanship And Respect As An Injury Prevention Strategy, Douglas E. Abrams

Faculty Publications

Preventing avoidable injury is the first obligation of adults who conduct and supervise youth sports events. The law plays only a limited role because lawsuits occur only after the injury. As the behavior of many parents and coaches has deteriorated, national youth sports governing bodies have produced materials that cast adults as role models and urge them to teach and practice sportsmanship and respect. These bodies should now recast these useful citizenship-based adult-education materials to stress also that adherence to sportsmanship and respect helps prevent injuries that can occur when adults acting irresponsibly neutralize national safety standards. Protective equipment is …

The Revolution In Family Law Dispute Resolution, John M. Lande

Faculty Publications

This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint …

Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben

Faculty Publications

The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …

What Constitutes An "Agreement In Writing" In International Commercial Arbitration? Conflicts Between The New York Convention And The Federal Arbitration Act, S. I. Strong

Faculty Publications

This article investigates whether and to what extent a party must produce an “agreement in writing” when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit split and a petition for certiorari to the U.S. Supreme Court, and involves matters of formal validity as well as federal subject matter jurisdiction. The problem arises out of subtle differences in the way an “agreement in writing” is defined in the Federal Arbitration Act (FAA) and the 1958 United Nations Convention on the Recognition and Enforcement of Foreign …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …

Regulatory Litigation In The European Union: Does The U.S. Class Action Have A New Analogue?, S. I. Strong

Faculty Publications

This article is the first to consider the European resolution from a regulatory perspective, using a combination of new governance theory and equivalence functionalism to determine whether the European Union has adopted or is in the process of adopting a form of regulatory litigation. In so doing, the article considers a number of issues, including the basic definition of regulatory litigation, how class and collective relief can act as a regulatory mechanism and the special problems that arise when regulatory litigation is used in the transnational context. The article also includes a normative element, providing a number of suggestions on …

Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells

Faculty Publications

This essay responds to Professor Fenster’s article in the Iowa Law Review, Disclosure’s Effects: WikiLeaks and Transparency, assessing the effects of the recent WikiLeaks disclosures. The essay agrees with many of Professor Fenster’s conclusions regarding the promise and peril of those disclosures, especially his concern regarding the problematic balancing approaches used to assess the likely impact when confidential information is revealed. It specifically elaborates on courts’ current application of the Espionage Act, a criminal law likely to be applied to the WikiLeaks disclosures, and the implications of that deferential application for WikiLeaks, Julian Assange and journalists in general.

The Twelve-Year-Old Girl's Lawsuit That Changed America: The Continuing Impact Of Now V. Little League Baseball, Inc. At 40, Douglas E. Abrams

Faculty Publications

In 1972, Little League's national office forced 12-year-old Maria Pepe off her Hoboken (N.J.) team because "[g]irls are not eligible." The New Jersey Division on Civil Rights sustained her gender discrimination claim in 1973, and the courts upheld the administrative decision a year later.

National reaction to Maria Pepe's courageous insistence on gender equity helped sustain the evolution in gender roles that had accelerated since the Women's Movement of the 1960s. Her landmark legal action also likely influenced the Supreme Court's gradual movement toward intermediate scrutiny of gender discrimination claims; the 1975 federal regulations that assured Title IX of the …