Digital Commons Network^™

Know The Law: A History Of Legal Specialization, Michael S. Ariens

Faculty Articles

Legal specialization is an unexceptional aspect of the profession of law because specialization and concentration are expected of lawyers. There has been a transformation in lawyers’ understanding of the reasons justifying their position in society and, therefore, a transformation in their understanding of what it means to be a “professional.” The ideological reasons for this transformation include: (1) the influence of the ABA in promulgating and proselytizing specialization standards; (2) a continuing insistence by the legal profession of the importance of the idea of a unified bar; (3) the large increase in size and influence of the legal academy, consisting …

Judicial Solecism Repeated: An Analysis Of The Oklahoma Supreme Court's Refusal To Recognize The Adjudicative Nature Of Particularized Ratemaking, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Formation Of Contracts In South American Legal Systems, Franco Ferrari

Faculty Articles

Practitioners -- of comparative law focus their attention mainly on Western European, Eastern European, and common law legal systems. This focus excludes South American systems, which will be discussed in this Article. South American legal systems are nearly all considered to be civil law systems. These systems are based upon various European codes, including the French Code Civil and the German Birgerliches Gesetzbuch. Laws governing the formation of contracts are no exception. In fact, this is an area where it is particularly easy to identify codes that inspired the legal systems under review. By doing so, this Article will first …

Federalism's Future In The Global Village, Barry Friedman

Faculty Articles

The challenge here is to begin to develop an understanding of globalization's impact upon the American federal system. Part of developing that understanding is getting an idea of how globalization is proceeding, and the impact it likely will have on state regulatory authority. Thus, Part I of this Article describes the process of globalization as it relates to federalism concerns. Then, Part II samples some of the multitude of state regulatory areas that globalization, in one way or another, likely will affect. Next, it is useful to compare the legal framework under which federalism concerns are addressed when domestic regulation …

A Thrice-Told Tale, Or Felix The Cat, Michael S. Ariens

Faculty Articles

Few legal scholars would dispute the constitutional, historical, and political importance of the events of 1937, when the Supreme Court, faced with President Franklin Delano Roosevelt's plan to reorganize the federal judiciary, ultimately approved a sweeping interpretation of governmental authority to implement socioeconomic legislation. The course of events, although frequently canvassed, has yielded conflicting interpretations of the actions and motivations of the Justices who took part in the fabled "switch in time that saved nine."

Felix Frankfurter arguably played a pivotal role in disseminating a particular history of the events of 1937. Reversing his own privately expressed position of dismay …

Wouldn’T You Like To Be An Expert, Too?, Michael S. Ariens

Faculty Articles

It was once an open secret among lawyers that finding an expert to testify on your client’s behalf was one of the easiest aspects of litigating. Lawyers not in possession of private lists of experts easily located persons willing and able to sell their expertise in the back pages of the state bar journal, in advertisements in legal newspapers, and in direct mail appeals from companies whose business is selling expertise. One consequence was that the phrase “a battle of the experts” came about, and people began referring to both lawyers and experts as “hired guns.” Another consequence was a …

Gays And Lesbians In The Military: A Rationally Based Solution To A Legal Rubik’S Cube, David A. Schlueter

Faculty Articles

This article addresses legislation which was an attempt to accommodate homosexuals serving in the military. The author concludes that Congress had a rational basis for adopting a policy of limited accommodation. The issue of homosexuals in the armed forces presented Congress with a significant challenge to the exercise of its constitutionally-based powers to regulate the military. Prior to the enactment of the “don’t ask, don’t tell” policy, homosexuals were banned from service in the United States military. Congress had the option to continue the ban on homosexuals in the military, become fully accommodating by allowing them to serve openly, or …

Donoghue V. Stevenson's 60th Anniversary, Franco Ferrari

Faculty Articles

On 26 May 1932, the House of Lords decided a case that has been defined not only as "revolutionary" and "[the] single most important decision in the history of the law of torts", but even as the "most important decision in all the common law". Of course, one refers to the so called "Snail Case" or "Snail in the Ginger Beer Case", i.e., to Donoghue v. Stevenson which has not only influenced English product liability law but (above all) the English law of torts.

Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein

Faculty Articles

In this essay, therefore, I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for …

The Moral And Practical Dilemmas Of An Underground Economy, Richard A. Epstein

Faculty Articles

All sorts of activities, some desirable and some unsavory, are part of the underground economy. The physician who takes cash for a Saturday office visit is working off the books; so is the waiter who reports some but not all tips as income; so too is the maid who pays no taxes on her wages. But the underground economy is far more vast than these examples suggest, for it embraces much more than the unreported, unrecorded, or informal economy. It includes industries that rely on illegal aliens and businesses that are completely outlawed, such as the trade in narcotic drugs. …

Courts, Covenants, And Communities, Clayton P. Gillette

Faculty Articles

In this Article, I argue that nonconstitutional doctrines also reflect our ambivalence about decentralized communities. My interests here lie in judicial review of the efforts of residential associations, primarily homeowners associations, to define their members' lifestyles in ways akin to the use of ordinances by traditional local governments. Local governments assume identities by selecting a particular basket of goods and services at particular tax prices, and then regulating the activity of those who are attracted by the goods and services offered. Yet the size of contemporary cities, combined with legal doctrines and political obstacles that prevent localities from differentiating among …

The What And Why Of The New Discovery Rules, Rochelle C. Dreyfuss

Faculty Articles

To those who study the evolution of law, the recent amendments to the discovery provisions of the Federal Rules of Civil Procedure (Federal Rules) provide a unique opportunity. In recent years, significant attempts have been made to reduce the hegemony of the Advisory Committee on Civil Rules (Advisory Committee) as the source of all change in federal procedure. For example, the 1988 Judicial Improvements and Access to Justice Act required that Advisory Committee meetings and minutes be open to the public, thereby facilitating public input into rulemaking. The 1990 Civil Justice Reform Act shifted some authority over rulemaking to the …

Uniform Interpretation Of The 1980 Uniform Sales Law, Franco Ferrari

Faculty Articles

The origin of the industrialized nations' need to comply with a specific economic policy designed to "transcend national borders in order to maximize the utilization of resources" originated from the consequences of the Industrial Revolution and, more specifically, from over-production due to the ensuing industrial growth. This economic policy "required a correspondent legislative policy able to regulate the economic relationships: this policy, not unlike the economic Policy, had to cross national borders." It is for this reason that since the end of the last century and with increasing intensity since the beginning of this century, efforts have been made to …

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy A. Hertz

Faculty Articles

This article discusses the harmless error standard of the U.S. Supreme Court for habeas corpus cases. The Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under the rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. In the decision on the case Brecht …

Future Nonadvance Obligations: Preferences Lost In Metaphor, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

Autonomy And Privacy: Protecting Patients From Their Physicians, Mary Anne Bobinski

Faculty Articles

Whom do physicians serve first: themselves, their patients, insurers, or society-at-large? This article constitutes the first scholarly exploration of the legal system's sometimes conflicting attempts to resolve this issue in the context of provider-associated risk. Courts and commentators are reflexively reacting to physician risks by uprooting and transplanting regulatory concepts from other areas, often without considering either the legal basis or the likely consequences for patients, physicians and society. In fact, these risks require a novel, and to some extent counterintuitive, judicial and legislative response.

There is a new perception that patients can be injured by physician self-interest. Part II …

Criminalization Of An Epidemic: Hiv-Aids And Criminal Exposure Laws, Michael L. Closen, Mary Anne Bobinski, Donald H.J. Herman, John F. Hernandez, Gene P. Schultz, J. Kelly Strader

Faculty Articles

Unfortunately, the HIV-AIDS epidemic is still out of control. According to federal esti­mates, another American becomes infected with HIV every thirteen minutes; consequently, eight people in the United States will contract HIV during the course of this program. Many individuals have been prosecuted and convicted for exposing others to HIV and in rare circum­stances for actually transmitting HIV to others. These cases have involved activities such as bit­ing, spitting, throwing bodily substances, and sexual conduct.

Serious questions have been raised about some of the prosecutions as well as the HIV-specific criminal statutes which have been adopted. This discussion will address …

The Recycling, Dismantling, And Destruction Of Goods As A Foreseeable Use Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

The past thirty years have witnessed the significant expansion and transformation of products liability law. While much of the initial confusion regarding the application and interpretation of Section 402A of the Restatement (Second) of Torts has been settled, some problems remain.

One of these problem areas involves the allocation of liability for injuries resulting from the destruction, dismantling, and recycling of products whose useful lives have come to an end. In this situation, the law has evolved to provide a rule that imposes no liability upon the manufacturer. The courts have reasoned that individuals engaged in reclamation procedures are not …

Comparing The United States Warehouse Act And U.C.C. Article 7, Drew L. Kershen

Faculty Articles

No abstract provided.

Justice Thurgood Marshall And The Legacy Of Dissent In Federal Alienage Cases, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Separating Prejudice From Rationality In Equal Protection Cases: A Legacy Of Thurgood Marshall, Harry F. Tepker

Faculty Articles

No abstract provided.

Between The Buttons: Employer Distribution Of Antiunion Insignia, John W. Teeter Jr

Faculty Articles

Employers should be forbidden from offering antiunion insignia to their workers. This is not contrary to current labor rules that allow employers and their supervisors to wear insignia. The workers' rights would still be safeguarded because employees would remain free to buy or create their own antiunion insignia. The goal is to protect the right of workers to debate, campaign, and vote on unionization with no harm to legitimate needs for self expression.

Generally, workers are entitled to wear campaign insignia regardless of whether it supports or decries unionization. In this manner, workers can openly proclaim their beliefs and seek …

The Unsecured Creditor's Bargain: An Essay In Reply, Reprisal, Or Support?, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

Upon Leaving A Firm: Tell The Truth Or Hide The Ball, Charles E. Cantú, Jared Woodfull V

Faculty Articles

Over the last fifteen years, two divergent common law views have emerged regarding the enforceability of noncompetition clauses between attorneys. The first is exemplified by two Oregon appellate cases and the landmark New York Court of Appeals’ decision, Cohen v. Lord, Day & Lord, whereby noncompetition clauses between attorneys were found void as against public policy. The second adopts a contrary opinion, questioning the conventional wisdom that those who seek legal advice must be afforded the broadest possible choice of counsel.

At present, a balancing test is used to reject the per se impermissibility of noncompetition clauses between lawyers. However, …

Erisa: Extracontractual Damages Mandated For Benefit Claims Actions, George Lee Flint Jr

Faculty Articles

Before 1974, participants in employer retirement plans seeking monetary relief for denied benefits were often hindered by procedural and jurisdictional obstacles. The Employee Retirement Income Security Act (“ERISA”) was passed in an effort to preclude hindrances and establish federally protected causes of action, which include equitable remedies and extracontractual damages. However, a jurisdictional split in the interpretation of ERISA in the federal circuits and among the states continues to impede participants full relief for their injuries. Furthermore, disparaging dicta in the Supreme Court decision in Massachusetts Mutual Life Insurance Co. v. Russell incorrectly suggests Congress intentionally foreclosed contractual remedies not …

Federal Courts And The Regulation Of The Insurance Industry: An Empirical And Historical Analysis Of Courts' Ineffectual Attempts To Harmonize Federal Antitrust, Arbitration, And Insolvency Statutes With The Mccarran-Ferguson Act--1941-1993, Willy E. Rice

Faculty Articles

The movement to reform the McCarran-Ferguson Act is misplaced. The Supreme Court and the lower federal courts are inferior forums for resolving insurance-related controversies. The language of the McCarran-Ferguson Act is unclear, and this lack of clarity created division among the federal courts.

Courts are divided over the definition of “business of insurance” and this causes problems for both consumers and the insurance industry. In addition, the Act also states that the Sherman Act shall apply to any insurance-related agreement or activity involving boycott, coercion, or intimidation; yet again, courts are divided over the applicability of the Sherman Act. Also, …

Rate Regulation At The Crossroads Of Usury And Unconscionability: The Case For Regulating Abusive Commercial And Consumer Interest Rates Under The Unconscionability Standard, Steven W. Bender

Faculty Articles

This article builds on the argument that the usury solution is flawed and urges a compromise between usury and market control that employs the variable fairness standard of unconscionability to police unfair interest pricing. The article examines American and comparative usury and unconscionability regulation to develop appropriate guidelines for unconscionability's new duty. It then proposes a model statute articulating the unconscionability standard for consumer loans. Finally, the article advocates employing usury controls under a limited regime of "spot treatment," rather than blanket control, for persisting pockets of lender abuse the unconscionability standard may fail to deter.

Redefining The Sixth Amendment, John B. Mitchell

Faculty Articles

This article compares public defenders in lower courts with public defenders in superior courts across the country. The article concludes that lower criminal courts suffer from problems of funding and resource allocation and that these issues must be addressed before they can adequately administer justice.

Oregon Consumer Protection: Outfitting Private Attorneys General For The Lean Years Ahead, Steven W. Bender

Faculty Articles

This article examines Oregon's UTPA with an eye toward legislative and judicial reforms that will strengthen its private cause of action and thereby facilitate private enforcement. First, the scope of the UTPA is examined. Next, private remedies authorized by the UTPA are critiqued. Finally, the role of the DOJ is reformulated in response to declining public resources and increased reliance on private enforcement.

Legal Writing: A Revised View, Chris Rideout, Jill J. Ramsfield

Faculty Articles

This article begins with the premise that most law students will become professional writers: that is, they will make their living from writing, whether in practice or academia. As such, they should be confident and comfortable with legal discourse and composition in practical, social, and intellectual contexts. That confidence must be based on good training throughout their law school careers, and that training must look beyond legal writing problems to solutions. To suggest solutions to legal writing problems, this article examines traditional definitions of legal writing, definitions that may themselves be impeding progress toward more effective training. It then offers …