Law Commons^™

The Practice/Theory Dilemma: Personal Reflections On The Louisiana Abortion Case, Ruth Colker

UC Law Journal

This Essay presents Professor Colker's experiences filing an amicus brief in Sojourner T. v. Roemer, the Louisiana Abortion case. She reflects on the difficulty of raising meaningful community support in the form of client sponsors for the brief. She also addresses the conflict between the desire to present the strongest legal and political arguments and the need to ensure that the brief be supported by as many community voices as possible. She examines both the problems she faced in compromising her legal argument to better represent potential clients' actual positions, and the pressure brought by other organizations trying to change …

Why Limit A Good Thing--A Proposal To Apply The California Antilapse Statute To Revocable Living Trusts, Rochelle A. Smith

UC Law Journal

Revocable living trusts have become a standard estate planning tool for avoiding the time, expense, and delay of probate. These popular will-substitutes allow donors to pass property at death and achieve the same result as would be obtained through a testamentary disposition. However, whereas California testators are protected by remedial measures such as the lapse and antilapse statutes, revocable living trustors are not. In California, when a devisee predeceases the testator, lapse and antilapse statutes operate together to terminate those gifts that potentially would pass to strangers while saving gifts devised to family members and passing these gifts directly to …

Data Processing And Government Administration: The Failure Of The American Legal Response To The Computer, Paul Schwartz

UC Law Journal

The use of computers to process vast quantities of data is currently a vital aspect of government administration. In order to centralize control over massive government programs, government agencies commonly implement computerized data processing systems that collect and analyze personal information regarding millions of citizens, and make this information available to numerous government officials. Yet, in contrast to many European countries, the development of American law reflects scant awareness of the dangers of this application of computerized data processing. Professor Schwartz attempts to remedy this problem by developing a legal approach to regulating the government's use of computerized data processing …

On Truth And Shielding In Child Abuse Trials, Jean Montoya

UC Law Journal

Concern for the victims of child abuse has recently swept the nation. This popular mood has led most states and the federal government to enact legislation designed to protect abused children from the strain of testifying at the criminal trials of their assailants. Many of these statutes limit face-to-face confrontation between the witness and defendant, most commonly by using a live video transmission between the courtroom and the child's separate testimonial room. Of course, such procedures implicate a criminal defendant's Sixth Amendment right to confront adverse witnesses. The United States Supreme Court held in Maryland v. Craig that testimony by …

Balancing Ethical Imperatives And Political Constraints: The Dilemma Of New Democracies Confronting Past Human Rights Violations, Jose Zalaquett

UC Law Journal

Since the early 1980s, newly emerging democracies have been confronting the ethical and political dilemma of how to address a legacy of human rights violations committed by former governments. Unlike the circumstances surrounding the war crimes trials in the wake of World War II, when recently deposed rulers were powerless, in many contemporary political transitions the perpetrators of past abuses continue to wield considerable power. As new governments attempt to repair the damage caused by their predecessors and to prevent the recurrence of human rights violations, they must avoid provoking a backlash.

In his Lecture, Sefior Zalaquett argues that these …

The Policy In Favor Of Settlement In An Adversary System, Stephen Mcg. Bundy

UC Law Journal

In recent years the settlement of pending civil cases has become an avowed goal of federal judicial administration. This Article considers whether this new policy favoring settlement is justified and how the policy ought to be implemented. The new policy differs from prior settlement preferences in rejecting the assumption, basic to the adversary system, that represented parties' decisions to continue litigation generally serve both the parties' and the public interest.

This Article examines the premises of the policy favoring settlement in light of recent changes in federal litigation. Professor Bundy considers the private interest arguments in favor of settlement and …

Economic Rights In The United States And International Human Rights Law: Toward An Entirely New Strategy, Barbara Stark

UC Law Journal

By ratifying the International Covenant on Economic, Cultural and Social Rights, a government "commits itself to its best efforts to secure for its citizens the basic standards of material existence." The United States is the only major industrialized democracy that has not yet ratified the Covenant. Two reasons have been advanced to explain our nonadherence. First, economic rights are foreign to domestic conceptions of rights. Second, the concerns addressed in the Covenant are primarily within the jurisdiction of the states.

In 1990, Professor Philip Alston urged those seeking ratification to develop "an entirely new strategy." Professor Stark believes that there …

The Golden State Of Labor Preemption: The Circuit Courts Have Gone Too Far, Tod A. Cochran

UC Law Journal

The doctrine of preemption is widely considered to be the most confusing area in labor law. In 1986, the Supreme Court changed the preemption playing field with its holding in Golden State Transit Corporation v. City of Los Angeles. Golden State and the circuit court interpretations of it expand the degree to which state and local actions are preempted by the National Labor Relations Act (NLRA). This Note argues that many of the circuit decisions have misinterpreted the Golden State doctrine in ways that expressly disadvantage workers and frustrate the principles of the NLRA.

A coherent analytical framework has yet …

Continuing Limits On Un Intervention In Civil War, Mary Ellen O'Connell

Journal Articles

Can the United Nations (UN or Organization) send military forces into civil war without the consent of the parties to the conflict? To date, it never has, but with the end of the Cold War, the Organization is in a position to think again about its proper role in civil war. During the past year, the Security Council has had requests to intervene in the civil wars in Iraq, Yugoslavia, and Somalia. So far, the UN has sent troops to Iraq and Yugoslavia but only after getting the consent of all parties.

The Security Council's recent decisions conform with the …

Your Right To Privacy: A Selective Bibliography, Sandra S. Klein

Journal Articles

An awareness of relevant contemporary legal thought in the area of privacy is especially important today in light of what appears to be an increasing hostility to .the notion of individual privacy. The following bibliography considers privacy in terms of concept and application, and should prove useful to scholars, practitioners, and those seeking to gain more knowledge about this very important and complicated area of law.

"Other Acts” & Character Evidence: Part I, Paul C. Giannelli

Faculty Publications

No abstract provided.

"Other Acts” & Character Evidence: Part Ii, Paul C. Giannelli

Faculty Publications

No abstract provided.

Dental And Bite Mark Evidence, Paul C. Giannelli

Faculty Publications

No abstract provided.

Legal Education And The Theatre Of The Absurd: "Can't Anybody Play This Here Game?", Paul A. Lebel

Faculty Publications

No abstract provided.

When First Amendment Values And Competition Policy Collide: Resolving The Dilemma Of Mixed-Motive Boycotts, Kay P. Kindred

Faculty Publications

No abstract provided.

Divided Justice: A Commentary On The Nomination And Confirmation Of Justice Thomas, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Does Treasury Have Authority To Index Basis For Inflation?, Lawrence A. Zelenak

Faculty Scholarship

In this article he examines the claim, which has been publicized in recent months, that the Treasury Department could unilaterally index the capital gains tax for inflation by a new regulation interpreting code section 1012. He concludes, in light of more than seven decades of administrative, judicial and legislative history, that such unilateral action would be invalid.

Editor's Comments, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Second Thoughts On Rust V. Sullivan And The First Amendment, William W. Van Alstyne

Faculty Publications

No abstract provided.

Foreword: O Canada, William W. Van Alstyne

Faculty Publications

This forward, written ten years after the adoption of the Constitution of Canada, draws sharp comparisons between Canada’s constitution and the United States’ original governing document, the Articles of Confederation.

The Dimensions Of American Constitutional Equality, J. Harvie Wilkinson Iii

Law and Contemporary Problems

Liberty and equality are the hallmark characteristics of any legal order. Constitutional equality in the US is discussed. The rights of equality are not economic in nature, and they are not subject to strictly majority rule.

The Legal Profession, Legal Education, And Change, Robert H. Jerry Ii

Faculty Publications

The accounts of how the legal profession has changed in recent years are as abundant as the changes themselves. The common message is clear: the magnitude of change is immense, and the pace is unprecedented.

Why Have Chapter 11 Bankruptcies Failed So Miserably? A Reappraisal Of Congressional Attempts To Protect A Corporation's Net Operating Losses After Bankruptcy, Michelle A. Cecil

Faculty Publications

This Article will first outline the history of judicial and statutory limitations on the free transferability of net operating losses, highlighting congressional attempts to afford more favorable treatment to troubled corporations reorganizing in Title 11 proceedings. It will then examine the operation of section 382 of the 1986 Code, again focusing on those provisions designed to assist in the successful reorganization of these corporations, and will demonstrate the wholesale inability of these provisions to preserve the net operating losses of troubled corporations. Finally, the Article will propose an amendment to section 382 that would increase the likelihood that corporations will …

Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean

Faculty Publications

The purpose of this Article is to examine the constitutionality of the legislative veto as it exists in Missouri, specifically the powers of the JCAR. Part II of the Article traces the history of the JCAR and the various types of powers given to it. Part III of the Article examines the experiences of the United States government and other states to determine their applicability to Missouri. Part IV examines the various grants of power to determine whether they comply with the Missouri constitution.

Title Page - Volume 30 (1991-1992)

Duquesne Law Review

No abstract provided.

Table Of Contents, Volume 30, Number 2, Winter 1992

Duquesne Law Review

No abstract provided.

Admission Of Business Records Into Evidence: Using The Business Records Exception And Other Techniques, Thomas P. Egan, Thomas J. Cunnigham

Duquesne Law Review

This article discusses problems encountered by attorneys faced with complex civil litigation where much evidence is contained in business-related documents. The article discusses evidentiary problems that recur in a majority of business documents, such as opinions by persons who are unavailable or nonexperts that are contained in these documents, and multiple levels of hearsay within business documents. In addition, this article explores the alternative options available to counsel when attempts to use the "business records exception" fail.

Escaping The Rico Dragnet In Civil Litigation: Why Won't The Lower Courts Listen To The Supreme Court?, Michael P. Kenny

Duquesne Law Review

This article provides a comprehensive analysis of civil RICO, and shows that the federal courts are divided in their interpretations of virtually every significant aspect of civil RICO. Mr. Kenny argues that the division of opinion is due to articulate meaningful interpretations of RICO's essential elements. Mr. Kenny also argues that unless RICO is amended to clarify its central components, or unless the Supreme Court decides that RICO is unconstitutionally vague, the lower federal courts will continue to fail to reach consensus on RICO's various elements. As a result, the courts will continue to fail to articulate meaningful standards of …

The Aids Challenge Continues: Should Pennsylvania's Criminal Law Take On The Challenge?, Molly E. Puhlman

Duquesne Law Review

No abstract provided.

Marshaling In Bankruptcy: Questioning The Recent Expansions To The Common Debtor Requirement, Many Emamzadeh

Duquesne Law Review

No abstract provided.