Law Commons^™

Choice, Conscience, And Context, Mary Crossley

Articles

Building on Professor Michael H. Shapiro's critique of arguments that some uses of new reproductive technologies devalue and use persons inappropriately (which is part of a Symposium on New Reproductive Technologies), this work considers two specific practices that increasingly are becoming part of the new reproductive landscape: selective reduction of multiple pregnancy and prenatal genetic testing to enable selective abortion. Professor Shapiro does not directly address either practice, but each may raise troubling questions that sound suspiciously like the arguments that Professor Shapiro sought to discredit. The concerns that selective reduction and prenatal genetic screening raise, however, relate not to …

Property (And Copyright) In Cyberspace, I. Trotter Hardy

Faculty Publications

No abstract provided.

Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs

Law Faculty Articles and Essays

I would like to use the writings of Moses as a lens to examine some challenges in judging. Moses authored the first five books of the Old Testament known as the Pentateuch or books of the law--Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. He is probably best known for leading the Hebrew people out of bondage in Egypt and for receiving the Ten Commandments. As our discussion today will reveal, he may also be credited with authoring some significant principles with respect to the judicial function.

Therapists' Liability To The Falsely Accused For Inducing Illusory Memories Of Childhood Sexual Abuse: Current Remedies And A Proposed Statute, Joel J. Finer

Law Faculty Articles and Essays

No issue in law and psychiatry has engendered such controversy as the current debate over whether experiences of childhood sexual abuse (CSA) are subject to repression for decades and eventually "recoverable" in therapy long after the event. One principal legal issue has been whether such "recovery" justifies the application of the "recent discovery" basis for tolling the statute of limitations, an issue which becomes significant when an adult psychotherapy patient sues her ostensible molester (often her father or other family member).

Front Matter, Volume 21, Number 2, University Of Dayton

University of Dayton Law Review

Cover, table of contents, administrative information

Aggressive Panhandling Legislation And The Constitution: Evisceration Of Fundamental Rights--Or Valid Restrictions Upon Offensive Conduct, Darryl C. Delmonico

UC Law Constitutional Quarterly

The phrase "Brother, can you spare a dime?" was spawned during the Great Depression and originally evoked sympathy and compassion from all but the most hardened listeners. Fifty years later, while economic realities persist, public perceptions and legislative responses have changed. With the middle class slowly becoming extinct, a widening chasm is developing between the 'haves' and the 'have-nots.' The prevalence of panhandlers in communities across the United States is a testament to this phenomenon. With this surge in panhandling has come increased public dissatisfaction. Legislators have reacted to this dissatisfaction by enacting legislation designed to criminalize intimidating or threatening …

A Pro-Death, Self-Fulfilling Constitutional Contruct: The Supreme Court's Evolving Standard Of Decency For The Death Penalty, Susan Raeker-Jordan

UC Law Constitutional Quarterly

In recent Eight Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor …

The Hamlet Fallacy: Computer Networks And The Geographic Roots Of Obscenity Regulation, Randolph Stuart Sergent

UC Law Constitutional Quarterly

Juries currently can find sexually oriented material to be obscene based on the community standards of the locality in which they reside. To determine whether sexual material that is transmitted over an international computer network is criminally obscene, one must comprehend the local community standards of every locality in the United States. The Supreme Court's use of this "local community standards" rule reflects a view of the local community as a relatively homogenous society in a distinct, geographically defined locality. When applied to international communications networks, this standard will excessively "chill" speech that is otherwise protected by the First Amendment. …

Of Kirpans, Schools, And The Free Exercise Clause: Cheema V. Thompson Cuts Through Rfra's Inadequacies, Dipanwita Deb

UC Law Constitutional Quarterly

In Cheema v. Thompson, a group of Sikh students suspended by the Livingston Union School District for carrying knives to school as dictated by their religion sued the district under the Religious Freedom Restoration Act (RFRA). The students are now back in school awaiting trial on the merits of their RFRA claim. This Note examines the Cheema case and uses it to argue that the language of RFRA as it now exists is inadequate to serve the broad religion-protective purposes for which the statute was enacted. The Note then proposes new amendments to RFRA, and tests the workability of these …

Equal Protection, Unequal Political Burdens, And The Ccri, Vikram D. Amar, Evan H. Caminker

UC Law Constitutional Quarterly

States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a rarely discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which states may effect repeal. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs contrary to the Equal Protection Clause. Taking these cases as …

And To The Republic For Which It Stands: Guaranteeing A Republican Form Of Government, Catherine A. Rogers, David L. Faigman

UC Law Constitutional Quarterly

Article IV, Section 4 of the Constitution was intended to safeguard against instability and oppression of voting minorities and to provide a check on factious majorities through a system of representative democracy. The state initiative process directly undermines these principles by allowing measures such as the CCRI to be enacted via direct vote of a largely uninformed population. This "direct democracy" violates the guarantee of a republican form of government in its lack of formal deliberation and debate, absence of opportunity to compromise, polarization of views, deception, and ultimate voter confusion.

This Essay also addresses the arguments in favor of …

Viewpoint Discrimination, Marjorie Heins

UC Law Constitutional Quarterly

Government action that disfavors speech because of its ideas or views is, as the Supreme Court recently said, "an egregious form of content discrimination," and is usually unconstitutional. However, it is not always clear precisely what makes discrimination viewpoint-based. Although the Court has recognized that disfavoring religious perspectives amounts to viewpoint discrimination, it has not yet applied this insight to government actions that target speech because it is deemed to be "political," "controversial," or "offensive." This Article addresses these questions in light of the history and basis of the viewpoint discrimination doctrine and underlying First Amendment values.

Specifically, this Article …

Analysis Of The Split Authority On Proof Of A Postmark Under Internal Revenue Code § 7502, Kenneth H. Ryesky

University of Dayton Law Review

No abstract provided.

A Derailment On The Information Superhighway: Desperately Seeking To Avoid Paying Compensation—A Case Study Of Special Access Collocation And Its Invalidation In Bell Atlantic Telephone Cos. V. Fcc, Leonard M. Baynes

University of Dayton Law Review

Bell Atlantic Telephone Cos. v. FCC, 24 F.3d 1441 (D.C. Cir. 1994).

Survival Of Liens: "Liens Pass Through Bankruptcy Unaffected" — Or Do They? In Re Penrod — Challenging An Adage, Beth A. Buchanan Staudenmaier

University of Dayton Law Review

In re Penrod, 50 F.3d 459 (7th Cir. 1995).

Tortious Interference With A Contract In Ohio, Thomas H. Ferguson

University of Dayton Law Review

Kenty v. Transamerica Premium Insurance Co., 650 N.E.2d 863 (Ohio 1995).

Taking Advantage Of Joe Camel'S And Marlboro Man'S Rights Is UnKool And MeritS Constitutional Protection, Maria J. Johnson

University of Dayton Law Review

Penn Advertising, Inc. v. Mayor of Baltimore, 63 F.3d 1318 (4th Cir. 1995).

Apportionment Of Harm In Tort Law: A Proposed Restatement, Gerald W. Boston

University of Dayton Law Review

No abstract provided.

Legal Reform — At The Expense Of Federalism? House Bill 956, Common Sense Civil Justice Reform Act And Senate Bill 565, Product Liability Reform Act, Beth Rogers

University of Dayton Law Review

No abstract provided.

When The Issue Is Funding, No News Isn't "Good News", Charles S. Hartman

University of Dayton Law Review

Rosenberger v. Rector & Visitors of University of Virginia, 115 S. Ct. 2510 (1995).

Social Contract Theory, Welfare Reform, Race, And The Male Sex-Right, April L. Cherry

Law Faculty Articles and Essays

In this article, Cherry argues that the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) is ultimately a politically undesirable and thinly veiled attack on the reproductive and sexual activities of poor women. In Part I, Cherry examines the development of social contract theory and analyzes social contract theory as a justification for material inequality. Part II examines social contract theory as a justification for the subordination of women. With this theoretical background established, in Part III, Cherry evaluates the current welfare reform proposals as social contract. This section examines the social contractarian language found in the current …

Joining A "Cult": Religious Choice Or Psychological Aberration?, Dena S. Davis

Law Faculty Articles and Essays

In this article, I will analyze the different theories about "cult" membership and conversion, specifically focusing upon whether or not conversions to cults ought to be respected by the law in the same way that the law respects conversion to and membership in, mainstream religions. In section II, I attempt (unsuccessfully) to define a "cult." In section III, I discuss the civil liberties issues surrounding "cults" and the public furor they have engendered. In secion IV, I discuss the different and competing theories about why young people join "cults," and the implications of those theories for public polic responses. Finally, …

Problems With The Privatization Of Heterosexuality, Mary Becker

Denver Law Review

No abstract provided.

The Progressive Potential In Privatization, Nancy Ehrenreich

Denver Law Review

No abstract provided.

The Role Of Firearms In Violence “Scripts”: The Dynamics Of Gun Events Among Adolescent Males, Deanna Wilkinson, Jeffrey Fagan

Law and Contemporary Problems

No abstract provided.

Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg

Articles

This article revisits the logical and empirical basis for current government patent policy in order to shed light on the competing interests at stake and to begin to assess how the system is operating in practice. Such an inquiry is justified in part by the significance of federally-sponsored research and development to the overall U.S. research effort. Although the share of national expenditures for research and development borne by the federal government has declined since 1980, federal funding in 1995 still accounted for approximately thirty-six percent of total national outlays for research and development' and nearly fifty-eight percent of outlays …

Meaning In The Life Of The Lawyer, James Boyd White

Articles

First let me say what a pleasure it is to be here on such an occasion. Dean Kronman is an old and valued friend, and I am very glad to be able to visit your school, of which I have heard many good things. In the remarks that follow I shall respond to Dean Kronman's eloquent and elegiac account of "civility" in our culture, and in the law, not so much by marking agreement or disagreement as by offering a few loosely connected reflections on the topics he raises.

The Distinction Between Crime And Tort In The Early Common Law, David J. Seipp

Faculty Scholarship

Lawyers and judges in English royal courts between 1200 and 1500 drew a distinction between crime and tort. Each type of lawsuit-each writ or action-had its own form and nature. Medieval English lawyers grouped these individual actions into categories such as real actions and personal actions, writs of possession and writs of right.' The lawyers recognized categories that later acquired the labels crime and tort, although those were not the names for them in the early common law. Crimes were prosecuted by actions known as indictments and appeals of felony. Torts were remedied by writs of trespass alleging use of …

Policing Speech On The Airwaves: Granting Rights, Preventing Wrongs, Maria Marcus

Faculty Scholarship

Should the FCC take steps to prevent repeated advocacy of specific violent acts on the airwaves? If so, it must meticulously differentiate between mainstream government critics who are exercising First Amendment rights of dissent, and inciters of murder and sabotage. This Article proposes a new test to guide the FCC in that endeavor. Part I begins with an overview of communications law and the FCC's erratic enforcement efforts-what it has chosen to regulate unhesitatingly (e.g., dangerous hoaxes and indecency) and what it has ducked. The next sections will analyze the inadequacy of the Supreme Court's incitement jurisprudence. The 1969 Brandenburg …

Union Lawyer's Obligations To Bargaining Unit Members: A Case Study Of The Interdependence Of Legal Ethics And Substantive Law, The Symposium: The Lawyer's Duties And Liabilities To Third Parties, Russell G. Pearce

Faculty Scholarship

One of the largest groups of purported nonclients to whom lawyers might have obligations are members of bargaining units represented by unions. Despite the much publicized decline of labor unions, they have almost 16.4 million members. In addition, many workers are members of bargaining units represented by labor unions, but are not union members. The relationship of union lawyers to these millions of bargaining unit members, whether members of the union or not, is unclear. An examination of how this relationship influences and is influenced by labor law offers a fascinating case study of the synergy between the substantive law …