Law Commons^™

Refusals To Deal In "Locked-In" Health Care Markets Under Section 2 Of The Sherman Act After Eastman Kodak Co. V. Image Technical Services, James F. Ponsoldt

Scholarly Works

In the Kodak context, several common health care provider practices, previously challenged with varying results under traditional antitrust analysis, may be reexamined to focus upon the effect of refusals to deal in a secondary market with potential competitors in that secondary market. This Article focuses on three such practices: (1) the non-immunized revocation of hospital staff privileges for other than legitimate, quality-of-care motives; (2) the denial of hospital privileges to differentially credentialed, state-licensed providers; and (3) the closure of membership in comprehensive health care plans, such as preferred-provider organizations, combined with a refusal to deal with nonmembers. These practices should …

"Common Sense Legal Reforms Act" Takes Center Stage, Susan J. Becker

Law Faculty Articles and Essays

This article discusses the extensive and highly controversial civil litigation reforms in Congress, which have been approved largely along party lines in the House of Representatives.

Aba Delegates Amend Model Rule , Susan J. Becker

Law Faculty Articles and Essays

The ABA House of Delegates has amended Model Rule 4.2 regarding whom attorneys may ethically contact directly during the course of litigation or other legal matters. This article discusses the ramifications of this change.

Evidentiary Use (And Misuse) Of The Civil Defendant's Financial Status, Karen M. Grundy

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

An Act To Provide For The Settlement Of The Water Rights Claims Of The Yavapai-Prescott Indian Tribe In Yavapai County, Az, And For Other Purposes, United States 103rd Congress

Native American Water Rights Settlement Project

Federal Legislation: An Act To Provide for the Settlement of the Water Rights Claims of the Yavapai-Prescott Indian Tribe in Yavapai County, Arizona, and for Other Purposes, P.L. 103-434, 108 Stat. 4526 (Oct. 31, 1994. Parties: Yavapai-Prescott Indian Tribe, AZ, Prescott, Chino Valley Irrigation District & US. Title I of the Act is the Yavapai-Prescott Indian Tribe Water Rights Settlement Act of 1994, which ratifies the Settlement Agreement entered into by the Tribe, AZ, US, Prescott, and the Chino Valley Irrigation District. It provides for the settlement of all water between and among the parties. The Secretary is authorized to …

"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel

Faculty Scholarship

Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.¹

This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …

Agenda: Regulatory Takings And Resources: What Are The Constitutional Limits?, University Of Colorado Boulder. Natural Resources Law Center, Byron R. White Center For The Study Of American Constitutional Law

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

Sponsored by the University of Colorado's Natural Resources Law Center and the Byron R. White Center for American Constitutional Study.

Conference organizers, faculty and/or moderators included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell, Gene R. Nichol, Jr. and Mark Squillace.

Governmental regulation for environmental protection and other important public purposes can affect the manner in which land and natural resources are developed and used. The U.S. constitution (and most state constitutions) prohibit the government from "taking" property without payment of compensation. Originally intended to apply to situations where the government physically seized private property …

Junk Science, Daubert, And Ohio Rule 702, Paul C. Giannelli

Faculty Publications

No abstract provided.

Wouldn’T You Like To Be An Expert, Too?, Michael S. Ariens

Faculty Articles

It was once an open secret among lawyers that finding an expert to testify on your client’s behalf was one of the easiest aspects of litigating. Lawyers not in possession of private lists of experts easily located persons willing and able to sell their expertise in the back pages of the state bar journal, in advertisements in legal newspapers, and in direct mail appeals from companies whose business is selling expertise. One consequence was that the phrase “a battle of the experts” came about, and people began referring to both lawyers and experts as “hired guns.” Another consequence was a …

Settle Or Sue: What Else Can I Do?, Lela P. Love

Articles

No abstract provided.

Constructing The Insurance Relationship: Sales Stories, Claims Stories, And Insurance Contract Damages, Tom Baker

All Faculty Scholarship

No abstract provided.

Polygraph Evidence: Part Ii, Paul C. Giannelli

Faculty Publications

No abstract provided.

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …

Confrontation Issues In Child Abuse Cases, Paul C. Giannelli

Faculty Publications

No abstract provided.

Polygraph Evidence: Part I, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Proper Role Of After-Acquired Evidence In Employment Discrimination Litigation, Rebecca White, Robert D. Brussack

Scholarly Works

A new defense to employment discrimination claims has gained acceptance in the lower courts. Employers who allegedly have discriminated against their employees because of race, sex or age are winning judgments on the basis of after-acquired evidence of employee misconduct. The evidence is “after-acquired” in the sense that the misconduct was unknown to the employer at the time the alleged discrimination occurred but was acquired later, often through the use of discovery devices in the employee's discrimination action. Lower courts have accepted the proposition that if the employer would have discharged the plaintiff on the basis of the after-acquired evidence, …

Water Quality Impacts Of The Point Of Diversion, Robert C. Helwick

Water Organizations in a Changing West (Summer Conference, June 14-16)

14 pages.

Contains references.

The Future Of Fair Housing Litigation, Robert G. Schwemm

Law Faculty Scholarly Articles

This article is a revised version of the keynote address I gave at a conference entitled "Where is Fair Housing Headed in This Decade?" sponsored by The John Marshall Law School in the Fall of 1992. As its title implies, the conference focused on the future of fair housing, and my address dealt with certain developments that I felt were not only observable in the early years of the 1990s, but were also likely to be important in the remaining years of this decade.

Many of these developments—such as the growing role of the federal government in fair housing enforcement …

Rape Trauma Syndrome & Child Sexual Abuse Syndrome, Paul C. Giannelli

Faculty Publications

No abstract provided.

Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson

Publications

No abstract provided.

Judicial Vacancies And Delay In The Federal Courts: An Empirical Evaluation, In Symposium, The Civil Justice Reform Act, A. Kimberley Dayton

Faculty Scholarship

This Article examines the relationship between federal district court judicial vacancies --whether caused by the executive branch's failure to timely nominate judges, Congress's failure to confirm presidential nominees, or some other reason -- and delays in processing the civil caseload. The hypotheses tested are several configurations of the hypothesis “judicial vacancies cause delay.” The statistical method of analysis of covariance is used to test this hypothesis and thereby evaluate the degree to which delays, defined by reference to certain case management statistics, are correlated to vacancy rates in individual federal district courts, and within the federal system as a whole. …

The Eleventh Commandment: Thou Shalt Not Be Compelled To Render The Ineffective Assistance Of Counsel, Richard Klein

Scholarly Works

No abstract provided.

New York Times Co V Sullivan: The 'Actual Malice' – Standard And Editorial Decision-Making, Geoffrey Bennett, Russel L. Weaver

Journal Articles

In an effort to explore conflicting views of the New York Times decision, this article compares how the British media functions under Britain's more restrictive defamation laws with how the US media functions under the actual malice standard. It does so based on interviews with reporters, editors, defamation lawyers, and others involved in the media in an effort to understand how they decide which stories to publish, and to gain some understanding of how libel laws affect editorial decision-making.

A Tribute To Thurgood Marshall, Peter N. Simon

Publications

No abstract provided.

Introduction (Symposium On Municipal Liability), Patricia E. Salkin

Scholarly Works

No abstract provided.

Cultural Literacy And The Adversary System: The Enduring Problems Of Distrust, Misunderstanding And Narrow Perspective, Jeffrey W. Stempel

Scholarly Works

The meandering road to discovery reform illustrates, among other things, the ineffectiveness of an atomized profession that lacks either sufficient understanding of the adversary system or the resources and forcefulness to address the practical impact of adversarialism. In some ways, lawyers reforming litigation can be characterized as poorer investigators than the sixsome who examined the elephant. The elephant sleuths were guilty of isolation and ignorance. Lawyers and policy makers not only exhibit a lack of information and empathy, but also often show an unwarranted distrust of or contempt for the elements of the profession with which they disagree. Unfortunately, however, …

International Trade Law And The Arbitration Of Administrative Law Matters: Farrel V. U.S. International Trade Commission, Ronald A. Brand

Articles

With support from the executive branch, Congress, and the courts, arbitration has become an increasingly popular method of international dispute resolution. While agreements to arbitrate traditionally were frowned upon, particularly when the dispute involved certain “public law” or “statutory” matters, the situation has changed dramatically in the past few decades. United States courts now routinely order arbitration of disputes implicating important policy issues in securities, antitrust, Racketeer Influenced and Corrupt Organizations (“RICO”), and employment law matters. By the end of the 1980’s, the presence of a public or “statutory” issue seemed no longer to be a distinguishing factor; arbitration, when …

“Junk Science”: The Criminal Cases, Paul C. Giannelli

Faculty Publications

No abstract provided.

Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Jicarilla Apache Tribe Water Rights Settlement Act Of 1992, United States 102nd Congress

Native American Water Rights Settlement Project

Federal legislation: Jicarilla Apache Tribe Water Rights Settlement Act of 1992, PL 102-441, 106 Stat. 2237. Parties: Jicarilla Apache Nation, NM and the US. The US and the Tribal President are authorized to enter into a Settlement Contract. Sections 3 and 4 of the Upper Colorado River Basin Compact should provide sufficient water. The Contract provides 33,500 a/f/y diversion from the Navajo Reservoir or Navajo River, and 6,500 a/f/y from the San Juan-Chama Project. Tribe is entitled to return flows and may subcontract for beneficial uses off reservation, but such uses are subject to state, federal and international law. The …