Digital Commons Network^™

The Last Minuet: Disparate Treatment After Hicks, Deborah Malamud

Faculty Articles

The purpose of this article is to explain why the Court's muchmaligned decision in Hicks was correct, and to further argue that in the aftermath of Hicks, the McDonnell Douglas-Burdine proof structure ought to be abandoned.

Foxes And Hen Houses?: Personal Trading By Mutual Fund Managers, Edward B. Rock

Faculty Articles

America's money is managed by professionals.' In this "fourth stage of capitalism,"' ensuring that those who manage our money do so in our interests becomes the critical question. This Article examines that question by focusing on the regulation of the personal trading activities of the managers of tomorrow's dominant institutional investor, mutual funds. In this Article, I examine the regulation of personal trading by money managers as a vehicle for better understanding the bases and strategies for regulating money managers in general. In Part I, after briefly describing the organizational and regulatory frameworks of the mutual fund industry, I describe …

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Faculty Articles

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that 'reasonableness" has been accepted as an international standard for the assertion …

"Two Cheers" For International Shoe (And None For Asahi): An Essay On The Fiftieth Anniversary Of International Shoe, Linda J. Silberman

Faculty Articles

A fiftieth birthday is a good time for taking stock. By most criteria, the, decision in International Shoe v. Washington has stood up well. After all, it is extensively cited, and one is hard-pressed to find a jurisdictional decision by any court in the United States in which it is not mentioned. Unlike several other jurisdictional chestnuts, it endures. For all the moaning about the woeful state of jurisdiction jurisprudence, the blame is not usually directed to the International Shoe case itself. It is odd that this should be the case in that International Shoe gave us the modem constitutional …

Forums Of The Future: The Role Of Specialized Courts In Resolving Business Disputes, Rochelle C. Dreyfuss

Faculty Articles

This Article addresses substance-specific strategies by examining the trend toward adjudicating business disputes in a specialized tribunal. Part I briefly describes the Delaware Chancery Court and the court proposed in pending Pennsylvania legislation. Delaware's preeminence in corporate matters makes its court the standard by which to judge all other such courts and Pennsylvania is well enough along in the process of creating a new court to provide a concrete context within which to consider the issues that specialization raises for business law. Part II builds on the scholarly research in the area of specialized adjudication, as well as my own …

Dolan V. City Of Tigard: Brief Of The Institute For Justice As Amicus Curiae In Support Of Petitioner, Richard A. Epstein, William H. Mellor Iii

Faculty Articles

The Institute for Justice is a nonprofit, public interest legal center committed to defending and strengthening essential foundations of a free society: private property rights, economic and educational liberty, and the free exchange of ideas. The instant case involves the limits of government power when conditioning the right to use and develop one's property on the surrender of other property to the government without compensation. Although the question in the case before this Court specifically concerns development "exactions," the issues presented go to fundamental questions about the nature and exercise of government power in a highly regulated, modem state and …

Free Speech And Due Process In The Workplace, Cynthia Estlund

Faculty Articles

Imagine a society whose citizens had free speech rights but no due process rights. The government could imprison citizens or banish them for any reason, or no reason at all, without notice or a hearing or proof of the charges; but it could not punish citizens based on their criticism of the government or other protected speech. The citizen who believed she had in fact been punished for speaking against the government could go to court and, if she could prove it, secure relief. How free would speech be in such a system? Would the citizens feel free to challenge …

The Fragmentation Of Federal Rules, Erwin Chemerinsky, Barry Friedman

Faculty Articles

Focuses on the localism trend of federal rules in the United States. Non-governing practice of conformity; Central accomplishment of uniform federal rule; Civil Justice Reform Act of 1990.

Establishing Education Program Inadequacy: The Alabama Example, Martha I. Morgan, Adam S. Cohen, Helen Hershkoff

Faculty Articles

The authors draw on their experience as attorneys for a statewide class of plaintiff school children in the liability phase of ongoing public education reform litigation in Alabama to demonstrate the availability of state and nationally recognized standards concerning educational resources (inputs) and results (outputs) that can serve as evidentiary tools for assessing and for establishing a state public education system's failure to satisfy constitutional mandates of educational adequacy. The Article discusses the usefulness and limitations of using such standards as a starting point in a court's constitutional analysis. It suggests an integrated approach that links input and output standards …

Custodial Choices For Children At Risk: Bias, Sequentiality, And The Law, Peggy C. Davis, Gautam Barua

Faculty Articles

Professor Davis, with Gautam Barua, analyzes the effects cognitive bias in risk assessment have on child placement decision-making.

Cumulative Voting In The United States, Richard H. Pildes, Kristen A. Donoghue

Faculty Articles

The purpose of this Article is to provide detailed quantitative and qualitative information, from one of the longest running experiments with cumulative voting in the United States, on the experience of cumulative voting in actual practice. In Chilton County, Alabama, cumulative voting has been in use since 1988 to elect members of the County's principal political bodies, the County Commission and the Board of Education. The academic literature is now filled with abstract arguments about the comparative merits and disadvantages of different voting systems, particularly the choice between territorial districts and alternative voting systems. Rather than continuing this abstract debate, …

Helping Jurors Determine Pain And Suffering Awards, Oscar G. Chase

Faculty Articles

The process by which pain and suffering damages are awarded in the United States has been aptly called "procedurally simple but analytically impenetrable." As the same author goes on to say, "[t]he law provides no guidance, in terms of any benchmark, standard figure, or method of analysis, to aid the jury in the process of determining an appropriate award." This state of affairs has prompted the attention of several commentators who have criticized the existing regime and suggested a variety of thoughtful proposals to improve the situation. In addition to describing the problem and some of the suggested solutions in …

Masking Dependency: The Political Role Of Family Rhetoric, Martha Fineman

Faculty Articles

In this Article, I want to explore the schizophrenic nature of the interaction between social ideals and empirical observations concerning dependency. I am particularly interested in the family as a social and political construct that facilitates this interaction. Specifically, I argue that continued adherence to an unrealistic and unrepresentative set of assumptions about the family affects the way we perceive and attempt to solve persistent problems of poverty and social welfare. In the normative conclusions that are generated and reiterated in political and popular discussions about family, we assess the "justice" of particular policies addressing societal problems with reference to …

Using Section 337 Of The Tariff Act Of 1930 To Block Materially Different Gray Market Goods In The Common Control Context: Are Reports Of Its Death Greatly Exaggerated?, Margo A. Bagley

Faculty Articles

This Comment examines the primary reasons for trademark owners within the common control exception to revisit section 337 when faced with materially different gray market goods. Part One discusses the issues in and history of the gray market goods controversy, and the common control exception. Part Two focuses on section 337: how it works, its use in gray market goods cases, and how it has changed as a result of amendments in the Omnibus Trade and Competitiveness Act of 1988 and in the Uruguay Round Agreements Act of 1994. Part Three traces the changes in the gray market landscape favorable …

On The Need For Asian American Narratives In Law: Ethnic Specimens, Native Informants, Storytelling And Silences, Margaret Chon

Faculty Articles

The race-ing process that leads to the "ethnic specimen" as well as to the resulting problems of the "native informant" deserves theoretical attention, for they affect how legal categories are constructed with respect to Asian Americans. This article attempts to expand on each of these phenomena. In part II, the author describes in more detail the concept of the "ethnic specimen" and in part III, the "native informant." Part III will also explore the various forms of silence, as well as other aspects of reticence the author and others have in the project of articulating an Asian American authentic native …

Freedom Of Religion & Religious Minorities In Pakistan: A Study Of Judicial Practice, Tayyab Mahmud

Faculty Articles

This article explores the practice of the superior judiciary of Pakistan as it relates to freedom of religion and rights of religious minorities. Pakistan's successive constitutions, which guarantee fundamental rights and provide for separation of powers and judicial review, contemplate judicial protection against unlawful executive and legislative actions. The record of Pakistan's judiciary about protection of the rights of religious minorities is uneven and has gone through three phases. The first phase is remarkable for unequivocal protection of freedom of religion and religious minorities. The second phase contracted this protection through undue deference to the legislature. In the last phase …

Erisa: Reformulating The Federal Common Law For Plan Interpretation, George Lee Flint Jr

Faculty Articles

In order to develop the federal common law of the Employee Retirement Income Security Act of 1974 (ERISA), courts must consider the history, foundations, and policies of ERISA. However, federal courts have yet to conduct this process. This failure is explained by either the fundamental nature of the American adversary system leading to the undermining of congressional intent, or the failure of the incompetent federal judiciary to follow legislative intent. Conclusively, the lack of developing federal common law has resulted in ERISA law that is hostile to participants and the policies that Congress intended ERISA to foster.

Although seldom following …

Jacques Of All Trades: Derrida, Lacan, And The Commercial Lawyer, Sidney Delong

Faculty Articles

Professor DeLong’s article provides humorous advice for legal professors on how to apply deconstructionist and post-Freudian theory to commercial law classes. Professor DeLong explains that the key to the successful integration of postmodern thought into your own scholarship is stunningly simple: all you have to do is not care whether you really get it right. He describes how you too will soon be turning out articles like "The Social Construction of Cowness in the Packers and Stockyards Act," or "Silencing the Lambs: Narratives of Loss and Evisceration in the Packers and Stockyards Act," or "Cattle Prods and Cutting Pens: A …

Youth Justice In A Unified Court: Response To Critics Of Juvenile Court Abolition, Janet Ainsworth

Faculty Articles

In this article, Professor Ainsworth argues that a unified criminal justice system is preferable to our present two-tiered adult-juvenile court system. In fact, she contends that the cultural and ideological assumptions that underpin the current two-tiered justice system not only engender many of the serious shortcomings of the juvenile justice system, but also serve to exacerbate the very policies and practices of the adult criminal justice system that make it so abhorrent to defenders of the juvenile court. Critics of juvenile court abolitionists thus miss the point when they argue that juveniles would be worse off than they are at …

Dough, Re, Me: The Scale Of Justice (A Descant For Entering First-Year Law Students), Kelly Kunsch

Faculty Articles

In his own inimitable style, Mr. Kunsch reengineers the well-known "Do Re Mi "from The Sound of Music to help introduce new law students to the legal profession.

Human Rights In Theory And Practice: A Review Of On Human Rights, Ronald Slye

Faculty Articles

One of the most important issues facing the international human rights movement is the claim that human rights values are universal and not culturally specific, and thus can be used to understand, evaluate, and influence global actors. This claim has obvious political and philosophical dimensions. That the concept of international human rights is being taken seriously by both governmental and nongovernmental actors is a sign of the importance of human rights today. The number of countries ratifying the basic international human rights treaties has reached an all-time high. Nevertheless, current events are drawing into question the universality and efficacy of …

On Comparing Apples And Oranges: The Judicial Clerkship Selection Process And The Medical Matching Model, Annette E. Clark

Faculty Articles

In this article, Professor Clark joins the debate over whether the federal judiciary should utilize the medical matching model to reform the judicial clerk selection process. She analyzes the medical experience with the residency match in order to detail the ways in which proponents of a judicial clerk match have overstated the benefits, underestimated the costs, and overlooked the differing and potentially conflicting interests of judges and clerkship applicants in the selection process. Professor Clark concludes that reform of the judicial clerk selection process should be guided by a realistic appraisal of the costs and benefits of a matching system.

Juvenile Detention Law In The District Of Columbia: A Practitioner’S Guide, Paul Holland, John Copacino, Milton Lee

Faculty Articles

On each and every day of the year (excluding Sundays), children are presented for an initial hearing in the Family Division, Juvenile Branch of the Superior Court of the District of Columbia. Because of unusually broad and often misapplied preventive detention laws, children charged with property offenses such as theft, or status offenses such as truancy and ungovernability, are subject to detention for an indefinite period of time through summary procedures which do not adequately ensure the reliability of the detention decision. Because the detention of juveniles has become routine in superior court, its potential harm to the child is …

Sentencing Guidelines And Prosecutorial Discretion, David Boerner

Faculty Articles

This article explores the topic of sentencing guidelines. Specifically, the author weighs the intended role of such guidelines against their role in actuality, noting the discrepancy between the two. The article concludes that it is up to the values and skill of those who implement the sentencing guidelines for their proper manifestation in the legislative process.

Whatever Happened To The Right To Treatment: The Modern Quest For An Historical Promise, Paul Holland, Wallace Mlyniec

Faculty Articles

Since the creation of the first juvenile court in 1899, state training schools have been the primary place of confinement for children removed from their homes. In theory such places were supposed to be home-like and rehabilitative in their facilities and care. In reality they were usually impersonal, understaffed, unhealthy, and even dangerous institutions, devoid of rehabilitative programs. From the late 1960s to the early 1980s, advocates for children pursued legislative and other policy reforms. They argued that children in state institutions had both a statutory and constitutional €œright to treatment. In this context, the authors of this article reassess …

A Short History Of Hearsay Reform, With Particular Reference To Hoffman V. Palmer, Eddie Morgan And Jerry Frank, Michael S. Ariens

Faculty Articles

Much of the history of the American law of evidence, including its most contentious issue, hearsay, is the story of stasis and reform. The case of Hoffman v. Palmer represents one of few cases concerning hearsay known by name, and illustrates that “false” evidence has often been used to caution against efforts proclaiming “radical reform” of the law of evidence.

In this case involving a collision between a car and a train, the critical question was: Is the defendant railroad permitted to introduce into evidence the transcript of a question and answer session made two days after the accident between …

About Outing: Public Discourse, Private Lives, Katheleen Guzman

Faculty Articles

No abstract provided.

Twenty-Five Years Of The Clean Air Act In Perspective, William Murray Tabb

Faculty Articles

No abstract provided.

Debtors Who Convert Their Assets On The Eve Of Bankruptcy: Villians Or Victims Of The Fresh Start, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

Texas’S New Habeas Corpus Procedure For Death-Row Inmates: Kafkaesque-And Probably Unconstitutional, James C. Harrington, Anne More Burnham

Faculty Articles

Texas courts should embrace their duty to protect the constitution and forbid the legislature from pursuing a politically popular agenda at the expense of the fundamental rights of certain citizens. Article 11.071 of the Texas Code of Criminal Procedure runs afoul of the language, intent, and purpose of Texas constitutional guarantees, and eliminates procedural protections designed to guard against the execution of innocent persons.

The Texas Legislature should not be allowed to shorten the time period for seeking habeas relief. Article 11.071 violates the due course of law provisions of the Texas Constitution and violates the Texas equal rights provision. …