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An Economic Approach To The Law Of Evidence, Richard A. Posner Jan 1999

An Economic Approach To The Law Of Evidence, Richard A. Posner

Articles

In this article, Judge Richard A. Posner presents the first comprehensive economic analysis of the law of evidence. The article is presented in three parts. First, Judge Posner proposes and describes two possible economic models, both a search and a cost-minimization approach, to describe how evidence is obtained, presented, and evaluated. In both, he incorporates Bayes' theorem to examine rational decisionmaking. Second, he examines the evidence gathering process, comparing and contrasting, in economic terms, the "inquisitorial" and "adversarial" systems of justice. The inquisitorial system, at first glance, appears to be more economically efficient. This, though, may be illusory, a result …


The Impact Of The Capital Markets On Real Estate Law And Practice, Michael H. Schill Jan 1999

The Impact Of The Capital Markets On Real Estate Law And Practice, Michael H. Schill

Articles

No abstract provided.


What Is Constitutional Theory?, David A. Strauss Jan 1999

What Is Constitutional Theory?, David A. Strauss

Articles

Just what is constitutional theory? How can it be, as Professor Fallon rightly says, that constitutional theory is both descriptive and prescriptive, and is supposed to produce results that seem morally right but also some results that make the theory's proponents uncomfortable? In this Reply, Professor Strauss argues that a constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to resolve more controversial issues. In our culture, for example, there is widespread agreement both on abstract principles- such as the idea that the text of the Constitution is …


Formalism In The Tax Law, David A. Weisbach Jan 1999

Formalism In The Tax Law, David A. Weisbach

Articles

No abstract provided.


Sex Discrimination In Life And Law, Diane P. Wood Jan 1999

Sex Discrimination In Life And Law, Diane P. Wood

Articles

No abstract provided.


The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar Jan 1999

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

No abstract provided.


Preparing For Oral Argument In The United States Supreme Court, Richard Henry Seamon Jan 1999

Preparing For Oral Argument In The United States Supreme Court, Richard Henry Seamon

Articles

No abstract provided.


Doing Without Speed Limits, Cass R. Sunstein, Robert E. King Jan 1999

Doing Without Speed Limits, Cass R. Sunstein, Robert E. King

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No abstract provided.


Must Formalism Be Defended Empirically ?, Cass R. Sunstein Jan 1999

Must Formalism Be Defended Empirically ?, Cass R. Sunstein

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No abstract provided.


Professors And Politics, Cass R. Sunstein Jan 1999

Professors And Politics, Cass R. Sunstein

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No abstract provided.


The New Formalism In United States Foreign Relations Law, Jack L. Goldsmith Jan 1999

The New Formalism In United States Foreign Relations Law, Jack L. Goldsmith

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No abstract provided.


Confusion About Custom: Disentangling Informal Customs From Standard Contractual Provisions, Richard A. Epstein Jan 1999

Confusion About Custom: Disentangling Informal Customs From Standard Contractual Provisions, Richard A. Epstein

Articles

No abstract provided.


The Ada In Turmoil: Judicial Dissonance, The Supreme Court's Response, And The Future Of Disability Discrimination Law, Stephen F. Befort, Holly Lindquist Thomas Jan 1999

The Ada In Turmoil: Judicial Dissonance, The Supreme Court's Response, And The Future Of Disability Discrimination Law, Stephen F. Befort, Holly Lindquist Thomas

Articles

The Americans with Disabilities Act (ADA) 1 was enacted in 1990 with considerable fanfare and support. A broad-based coalition of supporters testified in favor of the legislation before committee hearings 2 and both houses of Congress passed the legislation by wide margins. 3 President George Bush, in signing the ADA into law, described the new statute as "an historic opportunity" 4 representing "the full flowering of our democratic principles." 5


Travaux Preparatoires Of The Fair Trial Provisions--Articles 8 To 11--Of The Universal Declaration Of Human Rights, David Weissbrodt, Mattias Hallendorff Jan 1999

Travaux Preparatoires Of The Fair Trial Provisions--Articles 8 To 11--Of The Universal Declaration Of Human Rights, David Weissbrodt, Mattias Hallendorff

Articles

On 10 December 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. 1 In view of the fiftieth anniversary of the Declaration, this article reviews its origins. The article then focuses principally upon the drafting and meaning of the fair trial provisions of the Declaration. Rather than looking at the Declaration’s provisions article by article in numerical order, the article first considers the overall drafting history of the Declaration; second, it focuses on the principal fair trial provisions, Articles 10 and 11; and then deals with the drafting of Articles 8 and 9, which are complementary.


American Prisons At The Beginning Of The Twenty-First Century, Michael Tonry, Joan Petersilia Jan 1999

American Prisons At The Beginning Of The Twenty-First Century, Michael Tonry, Joan Petersilia

Articles

No abstract provided.


Mental Illness And Long-Term Disability Plans Under The Americans With Disabilities Act, Stephen F. Befort Jan 1999

Mental Illness And Long-Term Disability Plans Under The Americans With Disabilities Act, Stephen F. Befort

Articles

No abstract provided.


The Transformation Of The Juvenile Court--Part Ii: Social Structure, Race, And The "Crack Down" On Youth Crime, Barry C. Feld Jan 1999

The Transformation Of The Juvenile Court--Part Ii: Social Structure, Race, And The "Crack Down" On Youth Crime, Barry C. Feld

Articles

Part I briefly analyzes the social history of the juvenile court and argues that the progressive reformers who created the juvenile court designed it to discriminate against "other peoples' children," a feature that carries over into contemporary juvenile justice administration. Part II analyzes the "constitutional domestication" of the juvenile court. It places the U.S. Supreme Court's juvenile court "due process" decisions in a broader social structural context and argues that the Court emphasized procedural safeguards as part of its broader agenda to protect the civil rights and liberty interests of minorities. Part III analyzes the impact of the juvenile court's …


The Dilemma Of Intellectual Property Piracy In China, Jennifer S. Fan Jan 1999

The Dilemma Of Intellectual Property Piracy In China, Jennifer S. Fan

Articles

This Article analyzes the effectiveness of China's intellectual property laws and the role they play in China's foreign trade and investment. It gives an overview of how intellectual property laws developed in China and explains why they have been inadequate, especially with respect to the protection of the interests of U.S. companies. It then illustrates why America's response to the piracy of intellectual property has been largely ineffective. The Article explains why China's strides in intellectual property law have fallen short of expectations and offers alternative methods of protecting intellectual property rights in China.


The New Wild West: Measuring And Proving Fame And Dilution Under The Federal Trademark Dilution Act, Xuan-Thao Nguyen Jan 1999

The New Wild West: Measuring And Proving Fame And Dilution Under The Federal Trademark Dilution Act, Xuan-Thao Nguyen

Articles

The passage of the Federal Trademark Dilution Act of 1995 (the Dilution Act or Act) has been widely celebrated, as evidenced by the number of related articles, speeches and symposia. Commentators who applauded the adoption of the Dilution Act believed that a dilution claim would now be easier to prove by trademark owners against diluters because trademark owners would not have to establish the troublesome factual issue of consumer confusion. The courts have embraced the Act, and it has already proven to be an effective weapon for trademark owners. One court has even suggested trademark owners asserting claims of dilution …


Some Of Them Still Don't Get It: Hostile Work Environment Litigation In The Lower Courts, Eric Schnapper Jan 1999

Some Of Them Still Don't Get It: Hostile Work Environment Litigation In The Lower Courts, Eric Schnapper

Articles

This Article describes how the courts of appeals have decided sexual harassment cases in the five years since Harris v. Forklift Systems, Inc., 510 US 17 (1993). In some circuits, events have unfolded largely as Justice Scalia anticipated: the trier of fact—ordinarily a jury—applies the hostile work environment standard announced in Meritor and elaborated upon in Harris.


Chain Gangs, Boogeymen And Other Real Prisons Of The Imagination, Lisa Kelly Jan 1999

Chain Gangs, Boogeymen And Other Real Prisons Of The Imagination, Lisa Kelly

Articles

This narrative is a fictionalized account of real legal, historical, and interpersonal issues rooted in the social construction of race.


Telemedicine And Integrated Health Care Delivery: Compounding Malpractice Liability, Patricia C. Kuszler Jan 1999

Telemedicine And Integrated Health Care Delivery: Compounding Malpractice Liability, Patricia C. Kuszler

Articles

This Article considers how theories of medical negligence might be applied in the context of telemedicine and integrated delivery health plans. Part Two summarizes the history of telemedicine, its increasing breadth of application and opportunity and promise for the future. Part Three reviews traditional negligence principles and precedents and demonstrates how they might be applied when a telemedicine interaction results in negligence and harm to the patient. Part Four discusses evolving theories of shared liability applicable to health plans and managed care entities. Finally, Part Five demonstrates how shared liability theories will be applied to situations involving telemedicine technologies.


State Immunity Waivers For Suits By The United States, Evan H. Caminker Jan 1999

State Immunity Waivers For Suits By The United States, Evan H. Caminker

Articles

The Supreme Court closed this millennium with a virtual celebration of state sovereignty, protecting state authority from the reach of congressional power in several significant ways. In a pair of cases, Seminole Tribe v. Florida1 and Alden v. Maine,2 the Court held that states enjoy a constitutional immunity from being sued without their consent. In Seminole Tribe, the Court opined that "the background principle of state sovereign immunity embodied in the Eleventh Amendment"3 protects states from unconsented suits in federal court. In Alden, the Court held that this principle is not merely embodied in the Eleventh Amendment but rather is …


Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross Jan 1999

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.


The Three Threats To Miranda, Yale Kamisar Jan 1999

The Three Threats To Miranda, Yale Kamisar

Articles

Miranda v. Arizona (1966) was the centerpiece of the Warren Court's "revolution" in American criminal procedure. Moreover, as Professor Stephen Schulhofer of the University of Chicago Law School has recently noted, a numbir of the Miranda safeguards "have now become entrenched in the interrogation procedures of many countries around the world." But Miranda is in serious trouble at home.


Constitutions And Spontaneous Orders: A Response To Professor Mcginnis, Adam C. Pritchard, Todd J. Zywicki Jan 1999

Constitutions And Spontaneous Orders: A Response To Professor Mcginnis, Adam C. Pritchard, Todd J. Zywicki

Articles

Professor John McGinnis has written a perceptive and provocative comment on our economic analysis of the role of tradition in constitutional interpretation.1 A brief summary of our areas of agreement and disagreement may help set the stage for this response. It appears that Professor McGinnis substantially agrees with the two central propositions of our article. First, he appears to agree with our definition of efficient traditions as those evolving over long periods of time from decentralized processes.2 Second, he explicitly agrees that Justices Scalia and Souter have adopted sub-optimal models of tradition because they rely on sources that lack the …


The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar Jan 1999

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.


Doing Well And Doing Good: The Careers Of Minority And White Graduates Of The University Of Michigan Law School, David L. Chambers, Richard O. Lempert, Terry K. Adams Jan 1999

Doing Well And Doing Good: The Careers Of Minority And White Graduates Of The University Of Michigan Law School, David L. Chambers, Richard O. Lempert, Terry K. Adams

Articles

Of the more than 1,000 law students attending the University of Michigan Law School in the spring of 1965, only one was African American. The Law School faculty, in response, decided to develop a program to attract more African American students. One element of this program was the authorization of a deliberately race-conscious admissiosn process. By the mid-1970s, at least 25 African American students were represented in each graduating class. By the late 1970s, Latino and Native American students were included in the program as well. Over the nearly three decades between 1970 and 1998, the admissions efforts and goals …


Legal Research Tools: In Search Of The Best Format, Robin Schard Jan 1999

Legal Research Tools: In Search Of The Best Format, Robin Schard

Articles

No abstract provided.


Jury Reform At The End Of The Century: Real Agreement, Real Changes, Phoebe C. Ellsworth Jan 1999

Jury Reform At The End Of The Century: Real Agreement, Real Changes, Phoebe C. Ellsworth

Articles

Complaints about the jury system and calls for its reform are nothing new-they have probably existed as long as the jury system itself. Warren Burger called for the reform of the civil jury in 1971'; in 1905 William Howard Taft decried the contemporary tendency "to exalt the jury's power beyond anything which is wise or prudent .... ,2 Judges complain to judges, lawyers complain to lawyers, legal academics write articles about the jury for other legal academics, social scientists report their research on juries to other social scientists, and the jurors themselves go home and express their exasperation to their …