Digital Commons Network^™

Legal Education: An Illusion, Judith T. Younger

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No abstract provided.

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

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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 …

Employee Handbooks And The Legal Effect Of Disclaimers, Stephen F. Befort

Articles

In his article, Professor Befort discusses the use of employee handbook disclaimers in the workplace. He begins the article with an examination of the employment-at-will rule, its history, and exceptions which recently have been utilized by courts that refuse to apply the rule under certain conditions. He then turns to the use of handbook disclaimers and explores the varying contexts in which courts agree or decline to enforce them. Finally, Professor Befort offers a somewhat different approach which takes into account both the benefits employers derive from the use of handbooks and the reasonable expectations they instill in employees.

The Effectiveness Of International Human Rights Pressures: The Case Of Argentina, 1976-1983, David Weissbrodt, Maria Luisa Bartolomei

Articles

One significant gap in the burgeoning academic literature of international human rights law is the lack of research related to the impact of international and national procedures on the actual protection of human rights. 1 It is remarkable that almost no academics or activists have even attempted to assess the effectiveness of human rights measures. Of course, demonstrating effectiveness in any area of human endeavor, particularly international human rights work, is very difficult. Many human rights advocates investigate abuses and write letters to governments because they believe that speaking out is better than remaining silent in the face of repression. …

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

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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 …

The Government And Union Democracy, Theodore J. St. Antoine

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The desirability of union democracy is generally regarded today as a self-evident proposition. In this Symposium Clyde Summers treats it as a "fundamental premise." But there have always been reputable scholars who would support the thesis, in greater or lesser degree, that "democracy is as inappropriate within the international headquarters of the UAW as it is in the front office of General Motors."

The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner

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Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes, from the latter half of the 1970s into the present, comprise one of the great events of our age. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic.' The traditional "Leave It To Beaver" family no longer prevails in American society. To be sure, families consisting of a wage-earning husband, a homemaking and child-rearing wife, and their two joint children still exist. …

Ex Proprio Vigore, James J. White

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The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.

Absolute Priority And New Value, James J. White

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This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …

When Is There A Constitutional 'Right To Die'? When Is There No Constitutional 'Right To Live'?, Yale Kamisar

Articles

When I am invited to participate in conferences on the "right to die," I suspect that the organizers of such gatherings expect me to fill what might be called the " 'slippery slope' slot" on the program or, more generally, to articulate the "conservative" position on this controversial matter. These expectations are hardly surprising. The "right to die" is a euphemism for what almost everybody used to call a form of euthanasia-" passive" or "negative" or "indirect" euthanasia-and some thirty years ago, in the course of raising various objections to proposed euthanasia legislation, I advanced the "thin edge of the …

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 …

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

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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

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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 …

Of Outlaws, Christians, Horsemeat, And Writing: Uniform Laws And Saga Iceland, William I. Miller

Articles

Our word law is a loanword from Old Norse.1 It makes its earliest appearances in Old English manuscripts in the late tenth century. At that time the Old English word for law was, believe it or not, æ, written as a digraph called "ash." Now most readers, myself included, tend to experience anxiety when we confront a ligatured vowel like ae and so we untie it as a prelude to getting rid of it altogether: we turn an aesthete2 into an aesthete before finally humiliating him (or her) as an esthete, all to resolve our nervousness. King Æthelred the Unready …

Commentary: Meeting The Financial Needs Of Children, David L. Chambers

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Those who drafted the equitable distribution statutes adopted in New York and elsewhere wanted to help assure women and children an acceptable level of financial well-being after divorce. Marsha Garrison has shown that divorcing couples rarely possess enough resources to attain financial well-being even when they live together as a couple, let alone when they live in two separate households. She has also shown that, even in the cases of couples with substantial assets, the broad and general language of the equitable distribution statute did not lead (and could not have been expected to lead) to consistent distributions that assured …

To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth

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Professor Elliott raises two questions about the American Psychological Association's practice of submitting amicus briefs to the courts. First, are our data sufficiently valid, consistent, and generalizable to be applicable to the real world issues? Second, are amicus briefs adequate to communicate scientific findings? The first of these is not a general question, but must be addressed anew each time the Association considers a new issue. An evaluation of the quality and sufficiency of scientific knowledge about racial discrimination, for example, tells us nothing at all about the quality and sufficiency of scientific knowledge about sexual abuse. "Are the data …

Getting To No: A Study Of Settlement Negotiations And The Selection Of Cases For Trial, Samuel R. Gross, Kent D. Syverud

Articles

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree …

Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining

Articles

he connection between authority and responsibility is such that the one cannot be thought of without the other. In legal method, close reading and rereading of a text marks it as an authoritative text; the presupposition of mind which is necessary to close reading is presupposition of a responsible mind. In the working of institutions that embody authority, the disposition to follow the decisions and statements of a person responsible for a matter inevitably rests upon a presupposition that the decisions and statements followed are those of the responsible person. As that presupposition fades with bureaucratization of decision and writing, …

Who Should Live-Or Die? Who Should Decide?, Yale Kamisar

Articles

TRIAL asked Professor Kamisar questions on legal and ethical issues surrounding the right to die, a subject attracting increasing interest across the country and around the world.

Dangerous Liaisons: Seduction And Betrayal In Confidential Press-Source Relations, Lili Levi

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No abstract provided.

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

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No abstract provided.

Collateral Estoppel As A Basis For Attorney Discipline: The Next Step, Lester Brickman, John M. Bibona

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An attorney convicted of a serious crime involving moral turpitude may be consequently disciplined for violation of DR 1-102(A)(5) of the Model Code of Professional Responsibility or Rule 8.4 of the Model Rules of Professional Conduct without the need for relitigating the issue of the attorney's criminal guilt. Likewise, when an attorney is disbarred in one jurisdiction, he can be disbarred by another jurisdiction without relitigating the underlying facts which were the basis for the initial disbarment. When courts thus discipline lawyers, they are invoking collateral estoppel to prevent the attorney from relitigating an issue raised and resolved against him …

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.