Law Commons^™

White Collar Crime From Scratch: Some Observations On The East European Experience, Sarah N. Welling

Law Faculty Scholarly Articles

This Essay recounts the Author’s experiences with an American Bar Association program called the Central and East European Law Initiative (CEELI). The Author traveled in Eastern Europe and focused on white collar crime issues in Poland. The Author was exposed to Eastern Europe's conversion to democracy and a market economy and the role of white collar crime in this conversion. Poland is drafting white collar crime statutes from scratch. There is also the opportunity that Poland’s effort can help us examine our attitudes toward white collar crime.

False Witness: A Lawyer's History Of The Law Of Perjury, Richard H. Underwood

Law Faculty Scholarly Articles

From Cain to Potiphar's Wife to the pig and chicken laws of the Lex Salica of Clovis I, Professor Underwood examines the role of the false witness throughout history. Take a voyage extraordinaire and encounter some of history's most notorious perjurers.

A Philosophical Ground For Gays' Rights: "We Must Learn What Is True In Order To Do What Is Right", James M. Donovan

Law Faculty Scholarly Articles

A major platform of gays' rights seems to be that gays are entitled to social and political rights because, in fact, they are not different from the heterosexual majority when one looks past the definitional criterion of sleeping with the same sex. Any other differences, they claim, are "myths" and do not exist. From this perspective, without investigating bedroom behavior, one could never tell who is gay and who is not: Gays are just like "regular" people, the line goes, so they should be treated like them. "The best hope for acceptance," writes one Ann Landers reader, "is to show …

Scope Of The Uniform Commercial Code: Advances In Technology And Survey Of Computer Contracting Cases, Harold R. Weinberg, Ameila H. Boss, William J. Woodward Jr.

Law Faculty Scholarly Articles

Since the 1940s, the technology revolution has enabled people to communicate electronically. Sitting at a computer terminal connected to a modem and a telephone wire, it is possible to send a message anywhere in the country (or throughout the world)—to another computer, to a telecopy or telefax machine, even to a telephone. Paper is being replaced by electronic signals as a mode of communication. This revolution calls into question some of the fundamental rules upon which our contracts and the U.C.C. were built. On a broader scale, electronic communication raises issues that include the rights and responsibilities of providers and …

Waiver: A Comprehensive Analysis Of A Consequence Of Inadvertently Producing Documents Protected By The Attorney-Client Privilege, Roberta M. Harding

Law Faculty Scholarly Articles

The inadvertent production of documents protected by the attorney-client privilege frequently occurs in contemporary litigation. This phenomena becomes more prevalent as the number of cases involving inadvertent document production grows. Unfortunately, given the present modes for resolving the waiver issue that stems from this occurrence, this occurrence could threaten to become the rule rather than the exception. The increased frequency of inadvertent document production is due primarily to more disputes arising out of production of documents demands by the opposing party that emerge as parties request the production of an increasing number of responsive documents. As a result, the sheer …

The Preemption Of State Hazardous And Solid Waste Regulations: The Dormant Commerce Clause Awakens Once More, Michael P. Healy

Law Faculty Scholarly Articles

Last term, for the first time since its watershed decision in Philadelphia v. New Jersey, the Supreme Court considered the extent to which the Commerce Clause of the United States Constitution constrains a state's ability to regulate the disposal of hazardous and solid waste within its borders. In two cases, Chemical Waste Management, Inc. v. Hunt and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, the Supreme Court acted to limit substantially states’ ability to respond independently to the crisis of solid and hazardous waste disposal. The Article describes the harmful impact of the Court's …

Money Laundering: The Anti-Structuring Laws, Sarah N. Welling

Law Faculty Scholarly Articles

Several money laundering laws do not apply until the amount of money involved exceeds $10,000. The laws include three reporting requirements and one substantive crime. Launderers have responded to these laws in part by "structuring" their transactions--breaking them up so the amound involved in each transaction is less than $10,000. This Article collects and analyzes the laws that make structuring a crime. I have discussed one such law, the cash transaction report (CTR) anti-structuring statute, in a previous article. This Article analyzes the anti-structuring provisions of the three other money laundering laws that use numerical thresholds. It also examines how …

Organizational Form, Misappropriation Risk, And The Substantive Consolidation Of Corporate Groups, Christopher W. Frost

Law Faculty Scholarly Articles

The financial collapse of a corporation raises significant questions regarding its shareholders and creditors' ex ante allocation of the risk that such a collapse might occur. In bankruptcy, most of these risk allocation issues relate to the priority of particular creditors' claims against the assets of the failed business. But determining priority first requires some reasoned means of identifying the assets against which creditors may assert their claims. In many cases, this question is simply one of locating and distributing assets. However, when bankrupt firms have conducted their operations through a complex web of subsidiary corporations, each holding distinct assets …

Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.

Law Faculty Scholarly Articles

Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.

This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …

The Impact Of The Cipollone Case On Federal Preemption Law, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court handed down an opinion in the Cipollone case on June 24, 1992. Justice Stevens, writing for the majority, concluded that the Federal Cigarette Labeling and Advertising Act preempted all tort claims against cigarette manufacturers based on failure to provide adequate warnings about the health risks of smoking. However, the Court also held that claims based on breach of express warranty, misrepresentation, and conspiracy were not preempted by the Act. Thus, although Cipollone represents a clear victory for tobacco companies, it also leaves the door open for future litigation. The first part of this Article will …

Federal Preemption Of State Products Liability Doctrines, Richard C. Ausness

Law Faculty Scholarly Articles

Federal agencies now regulate the manufacture, design, and labeling of hundreds of consumer products. For example, the Consumer Product Safety Commission promulgates "consumer product safety standards" for a number of consumer products. Likewise, the National Traffic and Motor Vehicle Safety Act of 1966 authorizes the National Highway Transportation Safety Administration to develop safety standards for automobiles and other motor vehicles. Additionally, the Food and Drug Administration (FDA) exercises extensive control over prescription drugs, biologics, medical devices, and over-the-counter drugs. The FDA also regulates food labeling.6 Finally, Congress has established statutory labeling requirements for cigarettes, smokeless tobacco products, and alcoholic beverages. …

Judicial Review And Cercla Response Actions: Interpretive Strategies In The Face Of Plain Meaning, Michael P. Healy

Law Faculty Scholarly Articles

This Article examines the role courts play under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in cleaning up releases of hazardous substances. Congress intended the courts to have an important role in implementing the cleanup process-particularly in defining the scope of liability for CERCLA cleanups. But Congress also included a broadly-worded provision that forecloses federal judicial review of CERCLA cleanups unless the review action falls within several narrowly-defined exceptions.

Notwithstanding the terms of the provision foreclosing review, litigants have turned to the courts, asserting that immediate review should be available in cases beyond those exceptional proceedings. Those asserting …

Tribute To Donald A. Winslow, Rutheford B. Campbell Jr., Elbert P. Tuttle, Patricia T. Morgan, W. Thomas Halbleib Jr., Susan Stockton, Robert Weir

Law Faculty Scholarly Articles

This article is comprised of a series of tributes to Donald A. Winslow, who was a law professor at the University of Kentucky College of Law.

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 …

Implementing Custody Mediation In Family Court: Some Comments On The Jefferson County Family Court Experience, Louise Everett Graham

Law Faculty Scholarly Articles

The Jefferson Family Court's custody mediation service was developed as part of a larger program creating the first family court system in Kentucky. The mediation service's connection with the Family Court has influenced both practical and policy aspects of its development. Any description of the mediation project necessarily entails some description of the court system that created it.

This Article describes the structure of the Jefferson Family Court and the custody mediation process as it has developed in Jefferson County. A review of one community's approach to custody mediation may be useful not only as a blueprint for a system's …

A Primer On Kentucky Intestacy Laws, Carolyn S. Bratt

Law Faculty Scholarly Articles

Some form of inheritance has existed since ancient times. The biblical story of Esau, who sold his birthright to his younger brother Jacob for a mess of potage, demonstrates the long-standing recognition of inheritance rights. Although the United States Constitution does not explicitly guarantee to the owner of property a right to transmit that property upon death to another person, the United States Supreme Court has held that a total abrogation of the right of inheritance without the payment of just compensation is unconstitutional.

Every state has a system of inheritance created by statute and by case law. State inheritance …

Design Defect Liability: In Search Of A Standard Of Responsibility, Mary J. Davis

Law Faculty Scholarly Articles

Responsibility for the consequences of our own actions and occasionally for the actions of others seems to have been largely forgotten as a foundation for governing conduct. This Article advocates re-emphasizing responsibility in one important area, that of manufacturer liability for product design. To that end, the author proposes the highest standard of conduct by which to judge product manufacturers' design decisions. The standard proposed in this Article is higher than merely reasonable, prudent conduct and is not the allegedly "strict" liability frequently imposed. The standard this Article proposes reflects an emphasis on responsible conduct in light of the special …

Starting Down The Road To Reform: Kentucky's New Long-Arm Statute For Family Obligations, Louise Everett Graham

Law Faculty Scholarly Articles

Kentucky has long needed a comprehensive family law provision for its long-arm statute. Before the general long-arm statute was amended by the 1992 General Assembly, it addressed only a narrow class of paternity cases among its specific jurisdictional provisions, ignoring the need for long-arm jurisdiction in other domestic relations cases. A second long-arm statute provided jurisdiction over some nonresidents to establish or enforce child support obligations. In the contexts of divorce and child support, Kentucky's failure to claim constitutionally available jurisdiction deprived Kentucky residents of important protection.

Recent amendments to Kentucky statutes fill previous gaps and expand Kentucky's jurisdiction in …

Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness

Law Faculty Scholarly Articles

In Lucas v. South Carolina Coastal Council, the United Supreme Court was forced once again to delve into the law of regulatory takings. This experience is seldom a pleasant one. Echoing the poet John Milton, an exasperated state court judge once described takings law as a “Serbonian Bog.” Unfortunately, the takings doctrine is only slightly more comprehensible after the Lucas decision than it was before. Nevertheless, progress in this area, however modest, deserves praise, and the Court is to be commended for clarifying one aspect of takings jurisprudence. As a result of Lucas a “categorical rule” has been announced …