Digital Commons Network^™

Guilty Of The Crime Of Trust: Nonstranger Rape, Beverly Balos, Mary Louise Fellows

Articles

Current law allows defendants to use a preexisting relationship to give credibility to a defense of consent or reasonable, good faith belief of consent. However, the law acknowledges various connections between people and recognizes that under certain circumstances it is appropriate both to prevent a person from acting and to require a person to act. If courts applied the doctrine of confidential relationships to acquaintance rape, evidence of the relationship would impose upon the defendant a heightened duty of care to the victim. This heightened duty of care would change the mental element of the crime. It would also change …

Wills And Trusts: "The Kingdom Of The Fathers", Mary Louise Fellows

Articles

The purpose of my talk today is to use doctrines in wills and trusts law as the yardstick with which to measure the Kingdom of the Fathers. I will show that wills and trusts law has always and 2 continues to operate to preserve and sustain their Kingdom.

Of Spoil Pits And Swimming Pools: Reconsidering The Measure Of Damages For Construction Contracts, Carol Chomsky

Articles

To obtain a remedy in a breach of contract suit, a party must prove, and courts must determine, what damage the breach has caused. The general rule is straightforward: A party injured by a breach of contract is entitled to be placed in as good a position as if the contract had been performed.1 Ap- plying the general rule to specific circumstances - computing what it means to be placed in "as good a position as if the con- tract had been performed" - is more difficult.

Bfoq Revisited: Johnson Controls Halts The Expansion Of The Defense To Intentional Sex Discrimination, Stephen F. Befort

Articles

The bona fide occupational qualification (BFOQ) is a statutory defense to intentional discrimination under Title VII. 1 The BFOQ defense permits an employer to adopt an otherwise facially discriminatory employment practice if "reasonably necessary to the normal operation of that particular business. . . ." 2 Both the courts and the Equal Employment Opportunity Commission (EEOC) have traditionally interpreted this defense very narrowly. A gender-based employment classification, for example, qualifies as a BFOQ only if the failure to adopt a single-sex policy undermines the employer's ability to accomplish its essential business mission. 3

Confessions And The Right To Silence In Japan, Daniel H. Foote

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In several highly-publicized recent cases in Japan, individuals convicted of murder and sentenced to death were acquitted in retrials obtained after decades on death row. These so-called "death penalty retrial cases'" generated great controversy and considerable reflection about the criminal justice system in Japan. A central, substantive issue presented by these cases relates to the procurement and use of confessions; each of these cases-and several other major recent Japanese cases in which defendants have been acquitted following bitterly contested trials-turned on the validity of repudiated confessions.

Consequently, much recent commentary has focussed on conf essions and related issues. Not surprisingly, …

Nōryoku Shōgai Wo Motsu Amerikajin Ni Kansuru Hōritsu (Ada) To Amerikahō Ni Okeru Sabetsu No Gainen [The Americans With Disabilities Act And Concepts Of Discrimination In U.S. Law], Daniel H. Foote

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Paradoxical as it may seem, Title I of the Americans with Disabilities Act (hereinafter, "ADA"), which deals with employment of the disabled, at one and_ the same time represents only a gradual advance over existing law and a pathbreaking new statute with far-reaching implications. On the one hand, the ADA merely builds on the foundations laid in the Rehabilitation Act of 1973, with the key provisions of the ADA closely parallelling approaches taken in the Rehabilitation Act and regulations implementing it. On the other hand, the ADA vastly expands the coverage of the Rehabilitation Act, thereby establishing that integration of …

Shadow Casting Phenomena At Newgrange, Frank Prendergast

Articles

A digital model of the Newgrange passage tomb and surrounding ring of monoliths known as the Great Circle is used to investigate sunrise shadow casting phenomena at the monument. Diurnal variation in shadow directions and lengths are analysed for their potential use in the Bronze Age to indicate the passage of seasonal time. Computer-aided simulations are developed from a photogrammetric survey to accurately show how three of the largest monoliths, located closest to the tomb entrance and archaeologically coded GC1, GC-1 and GC-2, cast their shadows onto the vertical face of the entrance kerbstone, coded K1. The phenomena occur at …

Secured Creditors And The Eely Character Of Bankruptcy Valuations, David G. Carlson

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No abstract provided.

Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman

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In this article, I propose two changes in the way hearsay issues are usually resolved. First, in some circumstances courts should divide the burdens of producing the declarant-for example, by imposing the physical burden on the proponent and the financial burden on the opponent. Second, no matter how the declarant is produced as a witness, she should ordinarily testify as part of the proponent's case, subject to cross-examination by the opponent. If the declarant does become a witness, the admissibility of her out-of-court statement should not be resolved until her current testimony about the underlying events is received.

Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis And A Proposed Overhaul, Richard D. Friedman

Articles

Typically, arguments for restricting character impeachment evidence are based in part on the premise that prior crimes, at least violent crimes, generally indicate little about a person's veracity. The argument advanced here against character impeachment of criminal defendants does not rely on that premise; in fact, it accepts the premise that prior antisocial behavior, even not involving dishonesty, often does indicate a good deal about a person's general truthtelling inclination. A careful analysis of the situation of the accused on the witness stand-rather than an easy assumption about irrelevance-leads to this Article's broad conclusion that character impeachment evidence of criminal …

Expert Evidence, Samuel R. Gross

Articles

It seems that the use of expert witnesses in common law courts has always been troublesome. In his Treatise on the Law of Evidence, first published in 1848, Judge John Pitt Taylor describes several classes of witnesses whose testimony should be viewed with caution, including: enslaved people (which accounts for "the lamentable neglect of truth, which is evinced by most of the nations of India, by the subjects of the Czar, and by many of the peasantry in Ireland"); women (because they are more susceptible to "an innate vain love of the marvelous"); and "foreigners and others ... living out …

Comment On Preliminary Report On Freedom Of Expression And Campus Harassment Codes, Terrance Sandalow

Articles

Campus harassment codes pose an unprecedented problem for the AAUP, not only because the issues of academic freedom they raise are novel, but also because the academic community is itself deeply divided over those issues. Historically, the major assaults upon academic freedom have come from outside the academy--from politicians, trustees, and donors who have sought to limit inquiry and restrict the expression of unpopular views. Ideas about academic freedom have been shaped in the course of repelling these assaults and in constructing barricades that will safeguard the freedoms to teach and to learn that are at the center of the …

On Separable Torsion- Free Modules Of Countable Density Character, R. Gobel, Brendan Goldsmith

Articles

The endomorphism algebras of modules of large cardinalities have been extensively studied in recent years using the combinatorial set-theoretic techniques of Shelah-the so-called black-box methods (see, e.g., [4, 5, 151). Despite the spectacular success of these methods, they are not suitable for realization theorems at small carinalities. Of course at the level of countability (or rather more generally for cardinals ~2’~) there are in some cases the original dramatic results of A. L. S. Corner [ 1, 2, 31 and the more recent generalizations of Gobel and May [ 111. Very recently the study of realization problems at cardinalities

Zero-Based Racial Politics And An Infinity-Based Response: Will Endless Talking Cure America's Racial Ills Colloquy, Richard Delgado

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No abstract provided.

The Marcus Garvey Case: A Law And Power Theory Analysis Of Political Suppression Of Human Dignity, Steven H. Hobbs, Frank H. Fitch Iii

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No abstract provided.

The Return Of Hugo Black: The Significance Of The Hugo L. Black Collection At The University Of Alabama Alabama Section, Paul M. Pruitt Jr.

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No abstract provided.

The Substantial Identity Rule Under The Japanese Novelty Standard, Toshiko Takenaka

Articles

This article compares the novelty standard under Japanese patent law with the novelty standard under American patent law. This article first explains the structure of the novelty and inventive step provisions under Japanese patent law and examines the interpretation and basic legal theories of these provisions. The inventive step standard developed out of the novelty standard. Thus, to understand the inventive step standard, it is necessary to understand the novelty standard.

Next, this article discusses the unique features of the Japanese novelty standard. The strict novelty requirements of the patent laws of the United States and European countries are contrasted …

In Search Of Family Value: Constructing A Framework For Jurisprudential Discourse, Steven H. Hobbs

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No abstract provided.

The Transformation Of The Juvenile Court, Barry C. Feld

Articles

Ideological changes in the cultural conception of children and in strategies of social control during the nineteenth century led to the creation of the juvenile court. At the dawn of the twentieth century, Progressive reformers applied the new theories of social control to the new ideas about childhood and created a social welfare alternative to criminal courts to treat criminal and noncriminal misconduct by youth.

The Interplay Of Product Definition, Design And Trade Dress, Daniel J. Gifford

Articles

In the present Essay, I discuss some of the roles played by trademark law in stimulating competition among producers to develop new varieties of products and services. I argue that trademarks perform a particularly useful role in engendering innovation, and that this role was, for a time, threatened by the particular approach to genericity followed by the Ninth Circuit in its well-known Anti-Monopoly 1 decisions. I also argue that the developing law of trade dress performs a different, but nonetheless complementary, role in encouraging innovation.

Defendant Amenability To Treatment Or Probation As A Basis For Departure Under The Minnesota And Federal Sentencing Guidelines, Richard Frase

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No abstract provided.

Legal Images Of Battered Women: Redefining The Issue Of Separation, Martha R. Mahoney

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No abstract provided.

The Section Of Taxation: The First Fifty Years, James P. Holden, Harry K. Mansfield, John S. Nolan, K. Martin Worthy, James B. Lewis, Don V. Harris Jr., Mac Asbill Jr.

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No abstract provided.

Feminism Historicized: Medieval Misogynist Stereotypes In Contemporary Feminist Jurisprudence, Jeanne L. Schroeder

Articles

The article argues that contemporary feminist theories are ahistorical and culturally narrow, often mirroring medieval misogynist stereotypes by assuming that late-twentieth-century, white, upper-middle-class American experiences represent universal truths about gender. By examining medieval canon law and societal norms, the analysis reveals that patriarchal structures have persisted across time, adapting to different cultural definitions of masculinity and femininity. The author advocates for a more historically and cross-culturally informed approach to jurisprudence and gender theory to avoid replicating past oppressions.

History's Challenge To Feminism, Jeanne L. Schroeder

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No abstract provided.

Bispectral Reconstruction Of Signals In Noise: Amplitude Reconstruction Issues, Gopal Sundaramoorthy, M.R. Raghuveer, Sohail Dianat

Articles

When we have observations of a discrete deterministic signal (physical object) in colored Gaussian noise, it is possible to obtain asymptotically unbiased estimates of the bispectrum of the signal only at frequency pairs (al, w2) which do not satisfy any of the following: wI = 0, w2 = 0, and o1 + w2 = 0. Several approaches reported in the literature that deal with magnitude reconstruction from bispectra use bispectrum samples that lie on one of these three straight lines, thus using samples which are biased due to noise. We propose two approaches that rectify this situation. The paper also …

Unrightable Wrongs: The Rehnquist Court, Civil Rights, And An Elegy For Dreams, D. Marvin Jones

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No abstract provided.

Property And Necessity, Richard A. Epstein

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No abstract provided.

Free Exercise Revisionism And The Smith Decision, Michael W. Mcconnell

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No abstract provided.

The Selective Funding Problem: Abortions And Religious Schools, Michael W. Mcconnell

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No abstract provided.