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The Bill For Rights, Carl E. Schneider

Articles

Where today is legislative ingenuity lavished more bountiully than on the titles of statutes? And where has that ingenuity been better exercised than in the name "patients' bill of rights"? Do not our dearest liberties flow from the Bill of Rights? And who more deserves similar protection than patients in the hands of an angry Managed Care Organization? And behold, both Democrats and Republicans, both President Clinton and President Bush, have summoned us to arms. The patients' bill of rights is an idea whose time has seemed to have come for several years, and only conflicts among the numerous proposals …

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan

Articles

In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos) the Appellate Body has told us that (1) in interpreting Article 111:4 of the General Agreement on Tariffs and Trade (GATT), we must take explicit account of the policy in Article 111:1 that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile--Taxes on Alcoholic Beverages (Chile--Alcohol) the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection", we must consider "the purposes or objectives of a Member's legislature and …

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

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The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman

Articles

Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

Looking Back On Planned Parenthood V. Casey, Christina B. Whitman

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Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar's articles on coerced confessions, Terry Sandalow's essay on affirmative action, Joe Sax and Phillip Hiestand's description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber's demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most …

After Be & K: The Difficult Constitutional Question Of Defining The First Amendment Right To Petition Courts, Carol Rice Andrews

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No abstract provided.

Constitutional Reform In Alabama: A Necessary Step Towards Achieving A Fair And Efficient Tax Structure Working Papers, Susan Pace Hamill

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No abstract provided.

The Wages Of Crying Wolf Revisited: The Essential Consanguinity Of Lochner, Roe, And Eastern Enterprises Symposium: The Eleventh Amendment, Federalism, And Judicial Activism: Questions And Answers: Answer, Ronald J. Krotoszynski Jr.

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No abstract provided.

The Impact Of Internet Commerce And Trade Exchanges On Business Productivity, John Simon, Jack Cook

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According to some studies, the growing investment in information technology did not raise productivity in the 1980s - this observation was dubbed the productivity paradox. However productivity did rise in the 1990s - which could be a delayed effect, or due to the growth in networking. In this paper we address the impact of Internet commerce and trade exchanges on business productivity.

Intrafamilial Phenotypic Variability In Friedreich Ataxia Associated With A G130v Mutation In The Frda Gene, Dominick Mccabe, Nicholas Wood, Fergus Ryan, Michael Hanna, Sean Connolly, David Moore, Janice Redmond, David Barton, Raymond Murphy

Articles

Background: Most patients with Friedreich ataxia (FA) have a GAA trinucleotide repeat expansion in intron 1 of the FA gene (FRDA) on both arms of chromosome 9. However, some patients are compound heterozygotes and harbor a GAA expansion on one allele and a point mutation on the other. Compound heterozygous patients with FA who have a GAA expansion and a G130V mutation have been reported to have an atypical phenotype with a slow disease progression, minimal or no ataxia, or gait spasticity. Objective: To describe intrafamilial phenotypic variability in a GAA expansion/G130V mutation compound heterozygous family with FA. Setting: Tertiary …

Welfare Entitlements In The Era Of Devolution, Christine N. Cimini

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In 1996, the Republican Congress and Democratic President enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), ushering in a new era of public benefits. This 1996 act’s fundamental change to the administration and substance of public benefits called into question the applicability of a substantial body of procedural due process doctrine. As a result, unanswered questions remain regarding the applicability of established due process doctrine in the welfare reform context. This Article analyzes whether public law entitlements exist in the context of PRWORA’s first order devolution from the federal to state governments as well as some states’ second …

The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini

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This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration …

Textual Imagination, Mary D. Fan

Articles

Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring …

Taxes Vs. Fees: A Curious Confusion, Hugh D. Spitzer

Articles

Provides an analytical framework for categorizing varoius types of taxes and user charges and distinguishing between them, applying both economic and legal concepts.

Probability And Statistics In The Legal Curriculum: A Case Study In Disciplinary Aspects Of Interdisciplinarity, Michael Townsend

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This Article considers interdisciplinarity and the legal curriculum in the context of probability and statistics. Section D of Part II begins the discussion by sketching some multidisciplinary, pluridisciplinary, interdisciplinary, and transdisciplinary approaches. Part III is the workhorse of this Article. The particular example used here is the well-known jury discrimination case of Castaneda v. Partida as described in Section A. This "case study" provides the basis for a crossdisciplinary experience that offers students an opportunity to think about law as a discipline. It is difficult for students to step back and look at law as a discipline when there is …

Commercial Law Collides With Cyberspace: The Trouble With Perfection – Insecurity Interests In The New Corporate Asset, Xuan-Thao Nguyen

Articles

The recent downturn in the economy, particularly in the e-commerce sector, reveals many e-companies heading toward bankruptcy with cyberassets, such as domain names, as their most valuable corporate assets. Lending institutions and other creditors that have extended loans to such e-companies obviously want to get their hands on these bankrupt estates. Which creditor will have priority in the new cybercollateral of domain names? The answer to creditor priority questions may depend on whether domain names are intangible property for purposes of secured transactions. If so, should security interests in domain names be perfected under the Uniform Commercial Code or under …

Atlantic Salmon, Pacific Bound: Initiative, Defiance, Courage, And Indian Tribes In Environmental Law, William H. Rodgers, Jr.

Articles

I want to address my remarks to the students of the University of Maine School of Law who will face a great deal of unfinished legal business on the topics of salmon, Indian tribes, and environmental law.

Elsewhere, I have derived what I describe as the five virtues of effective action (genius, high-leveraging, symbolism, optimism, courage). People of achievement, lawyers or otherwise, are familiar with these virtues and display them in many creative forms.

Next, I will peer through this lens of effective action at some key moments in the history of Atlantic-Pacific Salmon Interactions. This coming together has been …

Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

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My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law, Pace University School of Law.]

The Customer Is Always Right . . . Not!: Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn

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This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?

The thesis of this article is that third party sexual harassment is a prevalent form of harassment that the legal system does not currently …

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Articles

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power.

The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses …

Lesbigay Identity As Commodity, David M. Skover, Kellye Y. Testy

Articles

This Essay explores the deep dissonance that exists today between the validation of American LesBiGays in the commercial marketplace and their devaluation in political and legal arenas, and questions the failure of legal scholars and civil rights activists to account meaningfully for this dissonance in their theories and practices. I

n America's popular culture, LesBiGay identities abound. In its political culture, however, they emerge more tentatively. The commercial and entertainment industries increasingly commodify and celebrate LesBiGay identities. The courts and legislatures generally discount and condemn them. Thus, there is a deep dissonance between the validation of LesBiGay identities in the …

Evaluating The Sex Discrimination Argument For Lesbian And Gay Rights, Edward D. Stein

Articles

The sex discrimination argument for lesbian and gay rights analyzes laws that discriminate on the basis of sexual orientation in terms of sex discrimination. For example, sodomy laws that prohibit only same-sex sexual activities are analyzed as discriminating on the basis of sex because they prohibit women from doing something men are permitted to do, that is, have sex with women. This argument has been championed by some scholars and litigators, and it has persuaded some judges. Edward Stein shows that there are sociological, theoretical, moral, and practical problems facing the sex discrimination argument. He suggests that there are better …

Beyond Exit And Voice: User Participation In The Production Of Local Public Goods, Lee Anne Fennell

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No abstract provided.

Valuation, Allocation, And Distribution Of Retirement Plans At Divorce: Where Are We?, Elizabeth Brandt

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No abstract provided.

Reverse Mortgage Information Online, Robin Schard

Articles

Reverse mortgages are a valuable tool that allow seniors to tap their home's equity. However, there are traps for the unwary

A Measure Of Freedom, James W. Nickel

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No abstract provided.

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

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The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

Experts, Carl E. Schneider

Articles

George Bernard Shaw famously said that all professions are conspiracies against the laity. Less famously, less elegantly, but at least as accurately, Andrew Abbott argued that professions are conspiracies against each other. Professions compete for authority to do work and for authority over work. The umpire in these skirmishes and sieges is the government, for the state holds the gift of monopoly and the power to regulate it. In Abbott's terms, "bioethics" is contesting medicine's power to influence the way doctors treat patients. If it follows the classic pattern, bioethics will solicit work and authority by recruiting government's power. A …

Chief Judge Edward R. Becker: A Truly Remarkable Judge, Marci A. Hamilton

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No abstract provided.