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Title Page - Volume 23 (1984-1985)

Duquesne Law Review

No abstract provided.

Table Of Contents, Volume 23, Number 2, Winter 1985

Duquesne Law Review

No abstract provided.

Limiting Discovery Of A Defendant's Wealth When Punitive Damages Are Alleged, Stephen E. Woodbury

Duquesne Law Review

This article addresses the question of when and how information concerning a defendant's financial worth should be disclosed in a claim for punitive damages. The author examines the methods currently used for disclosing this information and argues that the question of discovery of a defendant's wealth should be resolved only after discovery on the merits is concluded. The author rejects other approaches as inadequate, and asserts specifically that a plaintiff should have to prove in a "mini-trial" a prima facie case of a triable issue concerning the defendant's liability for punitive damages before the discovery is allowed.

History And Legal Discourse: The Language Of The New Legal History [Essay], Samuel J. Astorino

Duquesne Law Review

While the New Legal History has succeeded in establishing itself as an indispensable perspective in the specific study of the evolution of American law, its findings have not yet been incorporated into the mainstream of general American history. One of the chief reasons for this failure is the employment of technical legal language by lawyer-historians in their historical analyses of the common law and the corresponding inability of non-lawyer historians to understand such language. To this extent, general American history remains incomplete in its portrayal of the past, particularly in the area of industrialization.

Mental Stimulus Causing Mental Disability: Compensability Under The Pennsylvania Workmen's Compensation Act, Edward J. Mills

Duquesne Law Review

Section 301(a) of the Pennsylvania Workmen's Compensation Act, which provides that employers shall be liable for injuries or death of employees, has increasingly been interpreted to include disability stemming from emotional stress alleged to be work-related. The author examines the complex issues involved in determining whether such disability should rightly be considered an "injury," and thus compensable, under the Act. After a general discussion of the policy motivations behind workmen's compensation programs, the author turns to the inherent problem of proving the causative agents of mental disability. Following this discussion, the author conducts a survey of recent commonwealth court decisions …

Securities Exchange Act Of 1934 - Sec Rule 10b-5 - Insider Duty - Third Party Duty, Joseph L. Luvara

Duquesne Law Review

The Supreme Court of the United States has held that before a third party inherits a duty to disclose material non-public information or refrain from trading, an insider must first breach a specific fiduciary duty.

Dirks v. Securities and Exchange Commission, 103 S. Ct. 3255 (1983).

Copyright Law - Computer Programs, Richard F. Paciaroni

Duquesne Law Review

The Ninth Circuit Court of Appeals has held that all computer programs are copyrightable regardless of their function.

Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521 (9th Cir. 1984) (order affirming preliminary injunction).

Book Review, David L. Gregory

Duquesne Law Review

CIVIL RIGHTS: RHETORIC OR REALITY?. By Thomas Sowell. New York: William Morrow and Company, Inc., 1984. 164 pages.

Title Page - Volume 23 (1984-1985)

Duquesne Law Review

No abstract provided.

Table Of Contents, Volume 23, Number 3, Spring 1985

Duquesne Law Review

No abstract provided.

Statutory Inhibitions To The Application Of Principles Of Cost/Benefit Analysis In Administrative Decision Making, Alfred S. Neely Iv

Duquesne Law Review

With increasing intensity and wider application, the concept of cost/benefit analysis has been invoked in recent years as a relevant and necessary consideration in governmental decision making. This perhaps has been nowhere more evident than with regard to the activities of federal administrative agencies. With Executive Order 12291, issued by President Reagan in 1981, cost/benefit analysis in this context became a reality, most obvious in the order's mandate that "[regulatory action shall not be undertaken unless the potential benefits to society for the regulation outweigh the potential costs .... " This article presents the results of an in-depth study to …

The Federal Rules Of Evidence And The Discrimination Selection Of Forum, David E. Seidelson

Duquesne Law Review

Under the Federal Rules of Evidence the opportunity for an attorney to engage in a discriminating selection of forum arises in several instances. For example, where diversity jurisdiction would be available and the evidentiary results achieved by a state court and a diversity court sitting in that state would be different, the attorney may elect whether to assert diversity jurisdiction. Likewise, in the instance of a federal cause of action, where different circuits have interpreted one of the Federal Rules differently, the attorney may have the opportunity of selecting a federal district court sitting in the circuit possessing the most …

Discrimination By Gender In Automobile Insurance: A Note On Hartford Accident And Indemnity Co. V. Insurance Commissioner, Richard A. Miller

Duquesne Law Review

In Hartford Accident and Indemnity Co. v. Insurance Commissioner of Pennsylvania, the Pennsylvania Supreme Court held that automobile insurance rates based on the gender of the insured were "unfairly discriminatory" under Pennsylvania law. Though the court premised its holding on a finding that the Insurance Commissioner was correct in declaring gender-based insurance rates violative of the Pennsylvania Equal Rights Amendment, the author maintains that the court has committed a fundamental error in assuming that discrimination existed in the first place. The author rejects the notion that discrimination exists by the mere presence of sales of the same commodity to …

Legal Careers In Eighteenth Century America, Jay F. Alexander

Duquesne Law Review

History discloses that the colonial bar supplied a disproportionately large number of eminent statesmen who shaped America's severance from British rule. Following independence, the influence of the eighteenth century lawyer did not fade, but continued into the period of nation-building. The author examines the legal profession during this germinal stage of American history, creating a composite of the careers of these attorneys through excerpts of their letters and biographies.

Proposed Section 125 Cafeteria Plan Regulations: Invalidating Certain Section 105 Medical Plans Through Forfeiture Requirement, Julie E. Mcguire

Duquesne Law Review

The Internal Revenue Service has issued proposed regulations concerning cafeteria plans which include a provision denying favorable tax treatment to certain "cash out" medical reimbursement accounts established pursuant to section 105 and offered as a cafeteria plan benefit. The author analyzes the legislative intent surrounding enactment of the section 105 exclusionary provisions and concludes that the proposed regulations represent an act of overreaching on the part of the Service. Further, the author suggests that the proposed regulations are premature in light of the potential effect of cash out benefit plans on the economic policy of health care cost containment.

The Disciplinary Dilemma Confronting Attorneys Seeking To Counsel Civil Disobedients, Thomas E. Weiers Jr.

Duquesne Law Review

History is replete with instances where a community's duly enacted laws have offended the moral convictions of at least some of its citizens. This comment examines the conscientious undertaking of civil disobedience as a means of persuading those in power that such laws are repugnant to commonly shared or enlightened moral standards. An attorney sympathetic to a client who engages in such an undertaking must be wary of possible disciplinary sanctions that may be imposed against him: the Code of Professional Responsibility specifically prohibits attorneys from counseling a client with respect to conduct the lawyer knows to be illegal, and …

Coalbed Gas Owndership In Pennsylvania - A Tenuous First Step With U.S Steel V. Hoge, Nancy P. Regelin

Duquesne Law Review

The controversy over ownership of coalbed methane gas has come to the forefront due to its newfound value as an energy source. In the first case directly on point in the nation, U.S. Steel v. Hoge, the Pennsylvania Supreme Court quieted title exclusively in the coalowner based on an interpretation of the coal severance grant using standard legal construction principles. The author examines the background of the controversy and the criticisms leveled against the lower court dispositions of the case, and concludes that this first step towards resolution of the controversy is a tenuous one. This comment concludes that …

The Constitutional Right To Assistance In Addition To Counsel In A Death Penalty Case, Judith Olmstead

Duquesne Law Review

Although state and federal constitutional guarantees of effective assistance of counsel would appear to include investigative, expert, and other necessary support services, such assistance is frequently denied or, more significantly, never requested by defense counsel. The author compares states which afford generous support to indigent criminal defendants facing a potential penalty of death with other states in which the right of support services is within the discretion of the trial court. This comment then focuses on death penalty verdicts affirmed by the Pennsylvania Supreme Court, in which omission of such services and its effect on death penalty litigation is demonstrated …

Notice - Constitutional Law - Tax Sales, Christopher H. Connors

Duquesne Law Review

The United States Supreme Court has held that the due process clause of the fourteenth amendment requires notice by mail to mortgagees prior to a tax sale.

Mennonite Board of Missions v. Adams, 103 S. Ct. 2706 (1983).

Constitutional Law - Criminal Procedure - Prosecutorial Misconduct - Sanctions, John D. Noel

Duquesne Law Review

The Third Circuit Court of Appeals has held that prosecutorial withholding of evidence alleged to be exculpatory material will not result in a violation of the doctrine established in Brady v. Maryland if such evidence is discovered before trial and possible prejudice to the defendant.

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984).

People's Assessors In The Courts: A Study In The Sociology Of The Law [Book Note], Nicolas A. Vardy

Duquesne Law Review

PEOPLE'S ASSESSORS IN THE COURTS: A STUDY ON THE SOCIOLOGY OF THE LAW. By KáImáIn Kulcsár. Budapest, Hungary: Akadémiai Kiadó, 1982 (Eng. Translation). 140 pages.

Title Page - Volume 23 (1984-1985)

Duquesne Law Review

No abstract provided.

Table Of Contents, Volume 23, Number 4, Summer 1985

Duquesne Law Review

No abstract provided.

Errata, Volume 23 (1984-1985)

Duquesne Law Review

No abstract provided.

Reflections On Ethical Elements Of Judaic Halakhah, Phillip Sigal

Duquesne Law Review

Halakhah, or the body of Jewish norms of conduct and religious practices, consists of an everchanging aggregate of ethical principles. Halakhah is thus unlike most "legal" systems, which are characterized by the presence of a governmental authority reinforced by a justice system established to impose penalties. This article highlights the nature of halakhah as distinct from such traditional legal systems. Following this introduction, the author focuses on hermeneutics, the rules of religious textual interpretation, and their application to halakhic revision. The author then applies the hermeneutic to illustrate halakhic development in the areas of abortion and self-incrimination, and, in addition, …

The Honorary Counsul In Modern International Practice: Why Article 68 Of The Final Act Of The United Nations Conference On Consular Relations Should Be Amended To Provide A Uniform Regime For The Sending And Receiving Of Honorary Consuls, Robert M. Jarvis

Duquesne Law Review

States throughout the world have long sought to promote trade and commerce with other nations. One way in which states have attempted to foster such exchanges is by the development and maintenance of a consular service, the function of which is to facilitate business relations with the country in which they are stationed. This article examines the existing system of sending and receiving honorary consuls, who are used most commonly by smaller and/or less wealthy states in those ports and cities in which representation is thought important, but which do not justify the sending of a professional consular officer. Noting …

The New Bankruptcy Procedures For Rejection Of Collective-Bargaining Agreements: Is The Pendulum Swinging Back, Charlene R. Ehrenwerth, Maureen E. Lally-Green

Duquesne Law Review

In 1984 the United States Supreme Court, in Brotherhood of Teamsters v. Bildisco & Bildisco, held that a debtor in possession in a Chapter 11 bankruptcy proceeding could unilaterally reject existing collective-bargaining agreements. Under pressure from labor interests, Congress acted quickly and enacted amendments to the Bankruptcy Act, whereby executory collective bargaining agreements were removed from the operation of the rejection provisions found in section 365 of the Code. After summarily examining bankruptcy law and the Bildisco case, the authors thoroughly discuss new section 1113 of the Bankruptcy Code, which deals with the treatment of collective-bargaining agreements in the …

Divorce Tax Reform, Stewart B. Barmen

Duquesne Law Review

No abstract provided.

The Arbitrary And Capricious Standard Under Erisa: Its Organs And Application, John A. Mccreary Jr.

Duquesne Law Review

The trustees of private employee pension and benefit plans are subject to the fiduciary standards enacted by the Employee Retirement Income Security Act of 1974. One such standard-the arbitrary and capricious standard-originated in cases decided under the Taft-Hartley Act. The author examines the origins of the arbitrary and capricious standard, concluding that although the federal courts lacked jurisdiction under the Taft-Hartley Act to formulate and apply the standard, it nevertheless has been universally adopted by the courts in cases decided under ERISA. The author examines the judicial tests developed to determine fiduciary status, and surveys the application of the arbitrary …

The National Labor Relations Act At Fifty: Roots Revisited, Heart Rediscovered, Michael J. Heilman

Duquesne Law Review

1985 marks the fiftieth anniversary of the enactment of the National Labor Relations Act (The Wagner Act). The passage of time, however, seems to have shrouded the history of the NLRA and obscured the policies that it was enacted to serve. This comment explores the history and purposes of the NLRA. Through analysis of historical antecedents, contemporary events and legislative history, the author suggests that the NLRA was enacted to serve three primary purposes: to encourage economic recovery, to foster Industrial Peace and to establish Industrial Democracy. After discussing each of these purposes, the author concludes that they are as …