Law Commons^™

Negligence, Causation And Information, Stephen G. Marks

Faculty Scholarship

This note suggests a model to unify, in a simple information-based framework, the notion of negligence and the various notions of causation. In effect, the model demonstrates that negligence, probabilistic cause and cause-in-fact represent an identical concept applied to different information sets. This note uses the unified framework to develop a simple algorithm for the practical application of the principles of causation in the law of negligence.

Into The Hands Of Strangers, George J. Annas

Faculty Scholarship

Movie critic David Denby has asserted that American theatergoers are a "professional avant-garde audience" who "cannot be shocked by what others would find unintelligible... [and] have lost the capacity for outrage."' This analysis of American theater can be aptly applied to clinical medical education.

I assume almost every nonmedical professional reading "Death at a New York Hospital" will be horrified and outraged at the "treatment" Ms. Hewitt was subjected to in the hospital. Many physicians will too; but it is likely that more will be as understanding of the actions of the intern and residents as was Dr. A, the …

A Modified Approach To Article 9 Deficiencies In Missouri, William H. Henning

Faculty Scholarship

Unlike real property foreclosures, which are the subject of detailed statutory regulation, Part 5 of Article 9 establishes a free-wheeling system for personal property foreclosures which gives significant latitude to secured creditors. The secured party can "sell, lease or otherwise dispose of any or all of the collateral" so long as proper notice is given and "every aspect of the disposition including the method, manner, time, place and terms. . . [is] . . . commercially reasonable." If the disposition creates a surplus, it must be turned over to the debtor; if part of the debt remains unpaid, the secured …

Regulating The Sale Of Human Organs, Susan J. Hankin

Faculty Scholarship

No abstract provided.

A New Employment Policy For The 1980’S: Learning From The Victories And Defeats Of Twenty Years Of Title Vii, Jerome M. Culp

Faculty Scholarship

No abstract provided.

Avoidance Of Completed Real Estate Foreclosures In Bankruptcy, William H. Henning, Grant S. Nelson

Faculty Scholarship

The Eighth Circuit has ruled that in certain situations noncollusive real estate foreclosures can be set aside as fraudulent conveyances. This theory has generated considerable debate, but even if it is reversed legislatively trustees may be able to obtain comparable results under a preference theory.

Confidence In Probability: Burdens Of Persuasion In A World Of Imperfect Knowledge, Neil B. Cohen

Faculty Scholarship

No abstract provided.

The Scandal Of Smith And Buchanan: The Skeletons In The Mcculloch Vs. Maryland Closet, David S. Bogen

Faculty Scholarship

McCulloch v. Maryland announced principles of constitutional interpretation, federal power and federal immunity which are now basic doctrines of constitutional law. Yet it was quickly the most widely attacked of all John Marshall’s decisions. A reader of the case today may have a great difficulty understanding the criticisms. One key lies in understanding the people behind McCulloch.

The Dog And His Shadow: A Response To Overcast And Evans, George J. Annas

Faculty Scholarship

Aesop's Fable, "The Dog and the Shadow," begins with a dog walking over a bridge with a piece of meat in his mouth. Looking down into the stream, he sees his shadow. Thinking it is a bigger dog, with a piece of meat twice the size of his own, the greedy dog decides to get it. Snarling, he opens his mouth to attack. At that moment the meat falls from his mouth, into the stream. The dog realizes his mistake, and sadly says to himself, "Grasp at the shadow and lose the substance."

Drs. Overcast and Evans have not yet …

May The Government Exclude "Nontraditional" Charities From A Federally-Sponsored Charity Drive?, Joel Gora

Faculty Scholarship

No abstract provided.

The Reluctant Witness For The Prosecution: Grand Jury Subpoenas To Defense Counsel, Stacy Caplow

Faculty Scholarship

No abstract provided.

Formal Justice And Judicial Precedent, David B. Lyons

Faculty Scholarship

Despite the encroachment of legislation on matters that used to lie within the province of the common law, considerable scope remains for the judicial practice of following precedent, without challenging the authority of written law. For decisions must still be rendered where legislation has not yet intervened, and interpretations of written law can be accorded precedential force.

Why should courts follow precedents? When past decisions are unobjectionable on their merits, the practice is relatively unproblematic. It might, perhaps, be justified by the usual argument that it makes judicial decisions more predictable. That justification hardly seems, however, to confront the fact …

Fair Representation As Equal Protection, Michael C. Harper, Ira C. Lupu

Faculty Scholarship

In this Article, Professors Harper and Lupu argue that a model of "principled democracy" can systematize the now-disjointed body of labor law that imposes upon labor unions a duty of fair representation (DFR). The authors derive the framework for this model from the normative principle at the core of equal protection theory - that decisionmakers must accord "equal respect" to all within their jurisdiction. To transform equal protection doctrine into standards for the DFR, the authors strip away the institutional components of equal protection doctrine that are appropriate for judicial review of decisions made by public officials but inapplicable to …

Regulating Heart And Liver Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the United States. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal in nature, and thus neither are the solutions. Heart and liver transplants are extreme and expensive medical interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant …

A Truce In The Takeover Wars?, Gary S. Lawson

Faculty Scholarship

To a casual observer, hostile corporate takeovers may seem as pointless and destructive a form of modern warfare as the Iran/Iraq conflict. "Raiders" strike with bear hugs, junk bonds, and two-tier tender offers. Incumbent managers respond with poison pills, greenmail payments, shark repellents, and golden parachutes. Congress is wearying of the strife, and may soon impose a cease-fire on the combatants -but to whose benefit?

A Moderate And Restrained Federal Product Liability Bill: Targeting The Crisis Areas For Resolution, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Court Trial Empirical Survey: Interview Responses From Trial Judges Explaining Their Experiences And Views Regarding The Trial Of Non-Jury Cases, John O. Sonsteng, Roger S. Haydock

Faculty Scholarship

Knowing how a judge will react to certain trial techniques in a trial can greatly enhance an attorney's effectiveness in the courtroom. This article contains and explains the results of the authors' empirical survey. Fifty-nine judges serving in both criminal and civil court in the Minneapolis-St. Paul area were surveyed, with each judge responding to thirty-eight questions designed to obtain objective information concerning their experiences and views on effective trial advocacy. The survey covered eight topics: (1) trial briefs; (2) pretrial chambers discussions; (3) opening statements; (4) direct and cross-examinations; (5) evidentiary matters; (6) closing arguments; (7) findings of fact …

Indigenous Peoples, Land Claims And Control Of Mineral Development: Australian And U.S. Legal Systems Compared, John D. Leshy

Faculty Scholarship

No abstract provided.

Calculating Fees Of Special Masters, David I. Levine

Faculty Scholarship

No abstract provided.

Public Policy Limitations On Cohabitation Agreements: Unruly Horse Or Circus Pony?, H.G. Prince

Faculty Scholarship

No abstract provided.

Supreme Court Report: Five Wins And Nine Losses For Free Speech Fans, Joel Gora

Faculty Scholarship

No abstract provided.

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.

Exhaustion Of Administrative Remedies: The Lesson From Environmental Cases, Marcia R. Gelpe

Faculty Scholarship

The law governing exhaustion of administrative remedies is complex and confusing and fosters needless litigation: litigation that is burdensome to the courts and costly to defendants, that adversely affects agency decision making and that by its very existence, wrongly influences courts to dispense with the exhaustion requirement. Exhaustion remains troublesome to the courts; many of the decisions are confusing and poorly reasoned. A reexamination of the exhaustion doctrine is called for, not only to indicate how the cases should be decided, but also to clarify the issues sufficiently to guide parties' behavior so that they may avoid litigation over exhaustion's …

Constitutional Remedies For Underinclusive Statutes: A Critical Appraisal Of Heckler V. Mathews, Bruce K. Miller

Faculty Scholarship

The power of the federal courts to remedy injuries caused by constitutional violations is a fundamental assumption of our constitutional scheme. The Supreme Court's equal protection decisions of the past generation illustrate the extent to which we take this power completely for granted. When confronted with a statute that denies a litigant's fifth or fourteenth amendment right to equal treatment, the Court has rarely limited itself to a simple declaration that the statute is unconstitutional. Such declarations, rather, have been routinely accompanied by awards of often substantial relief to the persons injured by the unconstitutional inequality. The author analyzes Heckler …

Baby Doe Cases: Compromise And Moral Dilemma, Phoebe A. Haddon

Faculty Scholarship

No abstract provided.

The Tax Effects Of A Shareholder's Post-Incorporation Sale Of Stock: A Reappraisal, Robert I. Keller

Faculty Scholarship

No abstract provided.

Time Limits Under The Freedom Of Information Act: Another Problematic New Property Reform, Karen Czapanskiy

Faculty Scholarship

No abstract provided.

Tax Planning For Interest After Tra 1984: Unstated Interest And Original Issue Discount, Daniel S. Goldberg

Faculty Scholarship

No abstract provided.

The Supreme Court Rules For The Reporting Of Opinions: A Critique, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

Damned If You Do, Damned If You Don't: Hospitals' Liability For Physicians' Malpractice, Diane M. Janulis, Alan D. Hornstein

Faculty Scholarship

This Article explores some of the problems hospitals face in avoiding liability for the negligence of their independent contractors. After a critical analysis of the theories underlying imposition of liability, we discuss the sometimes conflicting public policy considerations respecting the mandates given to the modern hospital as these mandates affect hospitals’ liability.