Law Commons^™

An American Original, Ronald L. Carlson

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This is one of many articles tributing Judge Myron H. Bright in recognition of thirty years of service on the United States Court of Appeals for the Eighth Circuit. This article describes Professor Carlson's relationship with Judge Bright and details Judge Bright's career.

Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt

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This Essay analyzes defamation law as it applies to the media. Part I summarizes the state of defamation law prior to the 1990 Supreme Court decision in Milkovich v. Lorain Journal Co., when opinion was presumed immune from liability. Part II examines the holding in Milkovich, which suggests the potential liability for recklessly defamatory statements couched as or in the context of opinion. Part III reviews post-Milkovich decisions during the 1990's. This Essay concludes that the predictions of Milkovich were accurate in many jurisdictions and could apply to televised allegations during the coverage of the Clinton affair. …

De Minimis Discrimination, Rebecca H. White

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Is there any basis for a de minimis exception to our employment discrimination laws? This Article suggests a way of analyzing the issue of de minimis discrimination that comports with the language of and policies underlying Title VII and also with judicially developed disparate treatment theory. It approaches this project from a normative and doctrinal, not a deontological, perspective. Congress has enacted laws prohibiting discrimination in employment, and the appropriate question, in the first instance, is how those statutes should best be interpreted. Although the focus is on Title VII, the analysis undertaken here may be usefully applied to other …

Mend It Or End It? What To Do With The Independent Counsel Statute, Julian A. Cook

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The tenure of Independent Counsel Kenneth Starr has generated much debate among scholars, politicians, and the media in recent years regarding the efficacy of the independent counsel statute, which is scheduled to expire in June 1999. Enacted in response to the Watergate saga, and particularly the infamous “Saturday Night Massacre,” the independent counsel statute was designed to remove politics from the prosecution of executive branch officials and to foster public confidence in the prosecutorial process. Advocates claim that the statute, though flawed, is the best system available to address alleged criminal wrongdoing by high-ranking executive branch officials, as well as …

Constitutional Remedies, Section 1983 And The Common Law, Michael L. Wells

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Constitutional tort law marries the substantive rights granted by the Constitution to the remedial mechanism of tort law. The sweeping language of 42 U.S.C. 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any [person] to the deprivation of any [constitutional rights] shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Constitutional tort suits raise, in a new context, many tort-like remedial questions relating to causation, immunity, and damages--and therein lies a problem. The usual source of answers to …

Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Immunity Doctrines, Paul J. Heald, Michael L. Wells

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Part I of this Article addresses relief available to intellectual property owners under the Takings Clause of the Fifth Amendment. Before Congress's express abrogation of state sovereign immunity in 1992, federal, state, and local governments were nonetheless potentially liable for misappropriations of intellectual property that constituted takings without just compensation. This examination of the Supreme Court's Fifth Amendment jurisprudence is also key to answering the critical question of whether federal patent, copyright, and trademark laws establish rights in “property” for the purposes of the Fourteenth Amendment, for only under section 5 of the Fourteenth Amendment may Congress abrogate a state's …

Tort Claims Against The State: Georgia's Compensation System, R. Perry Sentell Jr.

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The State's immunity from liability for the torts of its officers and employees claims legendary status in American law. Indeed, immunity's history now looms as daunting as the doctrine itself. As with most epochal accounts, this history varies according to version--versions, assuredly, for many tastes. In sum, nevertheless, the offerings attest to a legal principle persisting as (at least) the point of departure in most jurisdictions. Anchored in both history and rationale, therefore, state tort immunity long dominated the law of the United States. Over time, indeed, the doctrine's durability proved unequal only to that of its critics. Those critics …

Sunbeam Products, Inc. V. The West Bend Co.: Exposing The Malign Application Of The Federal Dilution Statute To Product Configurations, Paul J. Heald

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Some judicial opinions lack persuasive authority because they are poorly written. Others establish dangerous precedent or enshrine pernicious attitudes into law. Still others twist the language of prior opinions or misuse legislative history. Although a focus on rhetorical structure, effect on society, or quality of legal reasoning is helpful in identifying what constitutes a very bad judicial opinion, this essay will instead expose the blander evils of indifference and inattentitveness. My “worst” opinion -- Sunbeam Products, Inc. v. The West Bend Co. -- will not have a catastrophic effect on American life and culture, but rather provides an important illustration …

State And Local Taxation Of Electronic Commerce: Reflections On The Emerging Issues, Walter Hellerstein

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When Ed Cohen honored me with the invitation to present the principal paper on state and local taxation of electronic commerce for this conference, I was pleased to accept, but with one caveat. Because most of my waking hours over the past year seem to have been consumed by the preparation of papers addressed to state taxation of electronic commerce, I warned Ed that much of what I might have to say would not be new -- at least to me. But a funny thing happened on the way to this forum. When I set about my task to prepare …

Civil (Tort) Litigation: The Search For Data Continues, Thomas A. Eaton

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What do we "know" about tort litigation in Georgia? How many tort suits are filed? What kinds of cases are filed? How many settle and how many go to trial? Do jurors tend to rule in favor of one party or the other? What are the typical damages awarded in cases in which the plaintiff prevails? How often are punitive damages awarded?

The Structure Of Blackstone's Commentaries, Alan Watson

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Duncan Kennedy's view of Sir William Blackstone's Commentaries on the Laws of England as the first systematic attempt to present a theory of the whole common law system is interesting but wrong. Blackstone himself listed his predecessors, "those who have laboured in reducing our laws to a System": Glanville, Bracton, Britton, the author of Fleta, Fitzherbert, Brook, Lord Bacon, Sir Edward Coke, Dr. Cowell, Sir Henry Finch, Dr. Wood, Sir Matthew Hale. Certainly their arrangements are not free from defects. In particular, as Blackstone pointed out, the arrangement of Fitzherbert and Brook was alphabetical, and Bacon purposely avoided any regular …

Folsom V. Marsh And Its Legacy, L. Ray Patterson

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The fair use doctrine has become so important in American copyright law that it is somewhat surprising to learn that the case credited with creating it, Folsom v. Marsh, was so poorly reasoned that it may be entitled to first place in the category of bad copyright decisions. The case was a bill in equity for copyright piracy, the style of which comes from plaintiff, Folsom, Wells and Thurston, printers and publishers, and defendants, Marsh, Capen and Lyon, booksellers.

If one of the characteristics of a bad legal decision is that it gives rise to a myth as to what …

Naked Politics, Federal Courts Law, And The Canon Of Acceptable Arguments, Michael Wells

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In this Article, I argue that there is a wide gap between the aspirations and the actual operation of Federal Courts law. I maintain that, despite the conversational rule forbidding it, raw substance in fact wields significant influence in the resolution of Federal Courts issues. For example, the familiar argument that federal courts should be favored because they are more "sympathetic" to federal claims is really an appeal to naked politics. The empirical premise of this and other arguments of naked politics is that there are structural differences between federal and state courts which affect the outcomes of close cases, …

Guide To Law And Literature For Teachers, Students, And Researchers, Paul J. Heald

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Companion text to Literature and Legal Problem Solving: Law and Literature as Ethical Discourse

The Newly Found "Compassion" For Sexually Violent Predators: Civil Commitment And The Right To Treatment In The Wake Of Kansas V. Hendricks, Elizabeth Weeks

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In light of heart-wrenching stories of sexual abuse and public demands for safety, the Kansas v. Hendricks case presented the Supreme Court with compelling facts on which to uphold the Kansas commitment strategy. After all, the statute prevented the release of a man whose history of sex crimes, incarceration, and institutionalization spanned nearly two decades, and who admitted he still had sexual desires for children but could not control his urges. Faced with that evidence, the Court would have been hard-pressed to strike down the Kansas statute by finding that such a predator received inadequate treatment for his disorder, or …

Disability, Deference, And The Integrity Of The Academic Enterprise, Anne Proffitt Dupre

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Congress has established a complex set of laws regarding the education of disabled students. This Article discusses the obligations the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act impose on schools and focuses on how courts interpreting these statutes address the decisions of educators regarding how best to educate disabled students. Professor Dupre brings to light a striking contrast between how courts regard the decisions of educators in higher education as opposed to the decisions of educators in primary and secondary schools, routinely according the former considerable deference while often …

Business Subsidies And The Dormant Commerce Clause, Dan T. Coenen

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In this Article, I seek to respond to the Court's overture with a treatment of of subsidies under the dormant Commerce Clause that moves progressively from the general to the specific. Part I examines key Supreme Court cases to show that the basic question of whether state business subsidies are constitutional remains open and important. Part II then turns to how that question should be resolved, focusing on whether subsidies are fairly distinguishable from ostensibly equivalent, and concededly unlawful, discriminatory tax relief. The thrust of Part II is that both precedent and policy support the traditional, pre-West Lynn Creamer" view …