Digital Commons Network^™

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 …

Tip Jars At The Law Library Reference Desk, Kelly Kunsch

Faculty Articles

Kelly Kunsch humorously argues for law reference librarians' right to accept tips for their service to the law school community.

Jurisprudence Of Successful Treason: Coup D'Etat & Common Law, Tayyab Mahmud

Faculty Articles

The first part of this article is a survey of all known judicial responses to coups d'etat in post colonial common law settings. Although these different coups unfolded in diverse contexts the courts validated all incumbent usurper regimes with one exception. Kelsen's theory of revolutionary legality furnished the primary doctrinal vehicle to reach this result. While some courts adopted Kelsen's proposition that efficacy of a coup bestows validity in an unadulterated form, others modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy. Following Kelsen, they fail to distinguish between legitimacy and validity of …

The Pornographic State, David Skover, Ronald Collins

Faculty Articles

Written as a contribution to the Harvard Symposium on Changing Images of the State, this article explores the realm of Pornotopia, a republic of images, the state that liberal America aspires to be. Imagine a nation in which there is little or no discord about pornography because there is little or no meaningful discourse about it. Imagine a nation in which people gladly trade the reality of human beings for images of that reality, a "virtual reality." Imagine a nation in which there is erotic self­expression but little or no communal expression. Imagine a nation in which sexual war and …

Equal Enforcement For All, George Van Cleve

Faculty Articles

As a premise, there is no reason in this society, at this time, for individuals of any race or economic status to be involuntarily exposed to disproportionate environmental risks. This article argues that if there are disproportionate impacts and you want to do something about it, you tell the government to increase enforcement resources. You tell the government to make sure that there are no exceptions, and that the fact that an employer is a large, local employer and politically influential does not mean that it should get any breaks from anybody for any reason.

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 …

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, …

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

Faculty Articles

No abstract provided.

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.

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

Faculty Articles

No abstract provided.

Fair Notice: Assuring Victims Of Unfair Labor Practices That Their Rights Will Be Respected, John W. Teeter Jr

Faculty Articles

Employers should always be required to read notices aloud to their workers as a standard remedy for violations of the National Labor Relations Act. Such a remedy would be a small but essential step in redressing the harm inflicted on workers by an employer’s unfair labor practices. Such notices are necessary for a series of reasons. First, millions of Americans suffer from reading deficiencies and cannot comprehend a printed notice. Second, even literate employees may not happen to observe the printed notice at the workplace. Third, a mere piece of paper is unlikely to reassure victims of unfair labor practices …

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 …

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 …

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 …

Outing In The Time Of Aids: Legal And Ethical Considerations, John F. Hernandez

Faculty Articles

No abstract provided.

Severely Dependent Alcohol Abusers May Be Vulnerable To Alcohol Cues In Television Programs, Linda C. Sobell, Mark B. Sobell, Anthony Toneatto, Gloria I. Leo

Faculty Articles

The self-reported ability of 96 alcohol abusers to resist the urge to drink heavily was assessed after they viewed a videotape of a popular prime time television program complete with advertisements. Different versions of the videotape were used to evaluate the effects of a television program with and without alcohol scenes as crossed with the effects of three different types of commercials (i.e., beer, nonalcoholic beverages, food). Before and after viewing the videotape, subjects, who were led to believe that they were participating in two separate and unrelated sets of experimental procedures, completed several drinking questionnaires. Responses to one of …

The Seven Deadly Sins Of Takings Law: The Dissents In Lucas V. South Carolina Coastal Council, Richard A. Epstein

Faculty Articles

An old and familiar adage of great relevance to the Takings Clause is that turnabout is fair play. The recent decision of Lucas v. South Carolina Coastal Council illustrates the soundness of that general proposition, but perhaps not in a sense the Justices might appreciate. Most of the attention to the case is rightly given to the majority opinion of Justice Scalia, with more than a passing nod to the concurrence of Justice Kennedy. These two dominant opinions present a large target, for while they touch upon many of the most important issues of takings law, they falter on at …

Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, Alexander T. Aleinikoff, Samuel Issacharoff

Faculty Articles

Shaw is no doubt a major opinion that attempts to define limits on the use of racial or ethnic classifications in electoral redistricting. The main thrust of this article is to assess the critical question of whether Shaw renders unconstitutional the type of race-conscious realignment of electoral configurations that have given meaning to the voting-rights reforms of the past two decades. In making this assessment, we try to ascertain exactly how the Court has limited the use of race-conscious districting, and we try to determine whether there is any jurisprudential coherence to the Court's latest confrontation with the law and …

Antidotes For The "American Disease", Richard B. Stewart

Faculty Articles

It may seem surprising and perhaps presumptuous to suggest that Europe is in danger of catching a distinctively American disease: regulatory legalism. The United States and the European Community reflect significantly different degrees of political centralization and have different legal and regulatory cultures. In the United States, formal, adversarial procedures and extensive litigation burden the regulatory process. In Europe, most regulatory decisions are developed through informal processes of consultation, and litigation is rare. Nonetheless, recent signs suggest that the European Community is vulnerable to a variant of U.S.-style regulatory legalism. Legislation in the Community increasingly relies on centralized command and …

Environmental Regulation And International Competitiveness, Richard B. Stewart

Faculty Articles

The world is simultaneously facing increasing economic interdependency and intensified demands for protecting the environment. The June 1992 United Nations Conference on Environment and Development (UNCED) in Rio has stimulated awareness of the global character of many environmental problems and the impact of environmental regulation on economic growth. At the same time, businesses and nations increasingly are concerned about their ability to compete in the international marketplace. Nations such as the U.S. that adopt stringent environmental protection measures fear that they will be disadvantaged in that competition. This Article examines the potential conflicts between environmental protection and international trade and …

Reading Between The Lines: Indigent Defense Issues And The Restatement Of The Law Governing Lawyers, Kim A. Taylor-Thompson

Faculty Articles

In the development and analysis of rules of professional responsibility, it has long been recognized that criminal defense is, simply stated, different. Many ethical codes acknowledge this distinction but rarely explain the difference sufficiently to provide practical guidance. And, frankly, if criminal defense is characterized as "different," then indigent defense should probably be described as "peculiar." When the attorney-client relationship is formed not by client choice, but by judicial appointment, dilemmas arise beyond those traditionally recognized in ethics codes. Moreover, prevailing indigent defense delivery systems are not uniform and generate unique ethical issues. To its credit, the Restatement of the …

Assurances Of Objectivity, Jeremy Waldron

Faculty Articles

Book review of Kent Greenawalt, Law and Objectivity, Oxford University Press, 1992.

From Authors To Copiers: Individual Rights And Social Values In Intellectual Property, Jeremy Waldron

Faculty Articles

Our tendency of course is to focus on authors when we think about intellectual property. Many of us are authors ourselves: reading a case about copyright we can empathize readily with a plaintiff's feeling for the effort he has put in, his need to control his work, and his natural desire to reap the fruits of his own labor. In this Essay, however, I shall look at the way we think about actual, potential and putative infringers of copyright, those whose freedom is or might be constrained by others' ownership of songs, plays, words, images and stories. Clearly our concept …

Labor Law Successorship: A Corporate Law Approach, Edward B. Rock, Michael L. Wachter

Faculty Articles

In this article, we take an approach fundamentally different from that of the labor law commentators. We start from a broader perspective than is common: successorship is as important an issue for corporate law as it is for labor law. Given that the two principal inputs to the firm are labor and capital, it would be surprising if the laws for labor law successorship were completely different from the laws for corporate law successorship. To the extent that differences exist, those differences should hinge upon differences between the employees' and the creditors' relationships with the firm. What distinguishes the employees' …

Ordinary Sacraments, Emily A. Hartigan

Faculty Articles

Richard Parker is a true force in constitutional thought, and his Populist commitment finds fertile landscape. However, there is something missing from his account of populism—the role of reflection and the fear of God in human affairs. Parker never deals with the fact that “the people” believe in God. Despite the intellectualist drive to separate God from politics, most Americans do not maintain such a wall. Whether under a stultifying separationist doctrine or in a more open pluralism, the people are God-fearing in an increasingly fractured and fascinating way—they are recognizably, fundamentally religious. Parker advocates being in touch with what …

Drafting A Constitution: A Friendly Warning To South Africa, Richard A. Epstein

Faculty Articles

I am happy to have received this opportunity to respond to Professor Herman Schwartz's presentation on what South Africa could learn from the American constitutional experience. My views of substantive provisions of the proper constitution differ sharply from those of Professor Schwartz in the American arena, and these differences will surely carry over to a discussion of what South Africa might learn from the American experience, now that it must confront its own tortuous transformation into a democratic nation. My remarks contain a warning against much of the conventional wisdom about what is right and wrong in constitutional building in …

Dialogue And Judicial Review, Barry Friedman

Faculty Articles

Most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The process of constitutional interpretation does not set electorally accountable government against unaccountable courts. The premise of electorally accountable decision making assumes an identifiable majority actually exists. In addition, the premise of judicial interference assumes that judicial decisions are final, when they are not. A more accurate view of the constitutional system needs to take into account constituency representation, the spaciousness of the constitutional text, and the dynamic nature of constitutional interpretation. The actual role of judicial review is dialogic. The courts interpret the …

Comparative Remarks On Liability For One's Own Acts, Franco Ferrari

Faculty Articles

The purpose of this Article is to outline the laws of torts as it varies with each country's legal system in order to illustrate that the actual differences between the systems are not too relevant. Indeed, generally, "where a plaintiff would recover in France, he would recover, too, in England." Apart from some unique rules, for example punitive damages in common law, compensation for wrongful death of a cohabitating partner in some French based systems, and compensation in kind in some German based systems, the tort law of the various countries tends to produce the same consequences. This affirmation presupposes …

Twenty-Five Years Of Strict Product Liability Law: The Transformation And Present Meaning Of Section 402a, Charles E. Cantú

Faculty Articles

Twenty-five years ago, the American Law Institute had just published Section 402A of the Restatement (Second) of Torts. As a consequence of this new and innovative rule, the theory of recovery in the area of defective products was expanded from a system based on principles of negligence and warranty to one that also included the doctrine of strict product liability. The promulgation of Section 402A marked the beginning of a growing revolution in the field of plaintiff-oriented litigation in which parties and courts frequently center their inquiry upon the defectiveness of the product and issues related thereto, rather than on …