Digital Commons Network^™

What We Talked About When We Talked About Ethics: A Critical View Of The Model Rules, Stephen Gillers

Faculty Articles

The bar has drafted a code that proves the wisdom of its own precept against client-lawyer conflicts. The lawyers who approved the Rules looked after their own. They have given us an astonishingly parochial, self-aggrandizing document, which favors lawyers over clients, other persons, and the administration of justice in almost every line, paragraph, and provision that permits significant choice. It is internally inconsistent to the bar's benefit. It continues the practice of using the language of ethics to mask controls on the availability of legal services that in turn artificially inflate the cost of the services. True, the Rules read …

Yellow Pages Legal Ads In Texas: The Complexities Of Dr 2-101(B) & (C), Vincent R. Johnson

Faculty Articles

A Texas lawyer desiring to place an advertisement in the Yellow Pages to offer legal services faces significant obstacles. Not only must he ensure that the ad conveys the correct image of the firm, but he must also comply with a number of specific requirements imposed by the Texas Code of Professional Responsibility. Two of the more dogging Code provisions are subsections (B) and (C) of Disciplinary Rule (DR) 2-101.

Between the requirements of these two subsections, the likely result is that the Yellow Pages ad will be a tangle of disclaimers, provisos, and footnotes if the project is to …

Competing Policies In Bankruptcy: The Governmental Exception To The Automatic Stay, William Murray Tabb

Faculty Articles

No abstract provided.

Commercial Rationality And The Duty To Adjust Long-Term Contracts, Clayton P. Gillette

Faculty Articles

I suggest in this Article an explanation, and in large part a justification, for the courts' reluctance to embrace the theories of adjustment. My argument reflects a substantial doubt, which I believe is shared by the decisions, that the imposition of a duty to adjust mirrors commercial reality, social utility, or individual right. I recognize, as do advocates of a duty to adjust, that contractual expression is necessarily fragmentary due to the incapacity of commercial actors to foretell completely events that might disrupt original expectations. My disagreement with adjustment advocates lies in the conclusions that follow from this premise. From …

Theory And Fact In The Law Of Accidents, Lewis A. Kornhauser

Faculty Articles

Review of Compensation and Support for Illness and Injury, by Donald Harris, Mavis Maclean, Hazel Genn, Sally Lloyd-Bostock, Paul Fenn, Peter Corfield and Yvonne Brittan, Clarendon Press, 1984.

The Uncertain Quest For Welfare Rights, Richard A. Epstein

Faculty Articles

The growth of government is an oft told tale, and nowhere is that growth more pronounced than in the expansion of government transfers of money, goods, and services to persons in need. These transfers rest on the presupposition that all individuals have a right to personal welfare. This asserted welfare right is typically defined as the right to receive "any form of assistance- monetary payment, good, or service-provided to an individual because of his or her need." The definition does not resolve all concrete cases. It is often difficult to determine in individual cases whether a payment is a pure …

The Original Understanding Of The Fourteenth Amendment In Illinois, Ohio, And Pennsylvania, James E. Bond

Faculty Articles

The fourteenth amendment is a second American Constitution, the "new birth of freedom" for which Lincoln had prayed at Gettysburg. It nationalized the protection of civil liberty and thereby revolutionized the structure of American government. In the three great clauses of its first section it guarantees the privileges and immunities of citizenship, the equal protection of the laws, and due process of law. These guarantees are the bedrock upon which the American regime of individual liberty rests. Stated as principles, these guarantees presumably embodied a particular view of man and his relationship to government. The nature of that view is …

School Health Services For Handicapped Children: The Door Opens No Further, Joyce Palomar

Faculty Articles

No abstract provided.

Equal Access To Law (School), Bill Piatt

Faculty Articles

One of the most rewarding aspects of serving on the law faculty at Washburn University School of Law has been the opportunity to recruit women and minority students and to serve as the faculty advisor to the Hispanic American Law Student Association. Following are some of my thoughts regarding the reasons for attracting more women and minorities to the legal profession. The comments relate to a legal education because that is my background; the principles I discuss should be equally applicable to other graduate programs as well.

Tax Policy For Post-Liberal Society: A Flat Tax Inspired Redefinition Of The Purpose And Ideal Structure Of A Progressive Income Tax, Charles O'Kelley

Faculty Articles

A flat rate comprehensive federal income tax could be achieved by replacing graduated rates with a single rate that applies to all taxpayers, eliminating many currently available deductions and credits, and treating as taxable income types of economic gain presently excluded from the tax base. The fact that Congress is seriously considering such radical changes makes it appropriate for tax scholars to reconsider longheld beliefs about the ideal structure of an income tax. This article analyzes the characteristics and underlying rationale of a progressive flat rate comprehensive income tax and reconsiders the nature and purpose of a progressive income tax. …

The Emergency Room Admission: How Far Does The Open Door Go?, Ken Wing, John R. Campbell

Faculty Articles

In recent years many private and some public hospitals have assumed a new proprietary persona, a business-like posture that clashes with the traditional hospital goals of charity and community service. This conflict may be most acute in the emergency room where the hospital may further its financial interests by quickly transferring or discharging undesirable emergency patients. This article explores the extent of a private hospital’s legal obligation to treat a patient once emergency care has begun. It begins by looking at hospital revolutions, emergency rooms, and the standards of emergency care. It then explores the common law and “no duty” …

Rethinking Sex And The Constitution, Sylvia A. Law

Faculty Articles

This Article attempts to articulate a stronger constitutional concept of sex-based equality than that which currently exists. The central thesis is that the development of modern constitutional sex equality doctrine has suffered from a lack of focus on biological reproductive differences between men and women. The reality of sex-based physical differences poses a significant problem for a society committed to ideals of individual human freedom and equality of opportunity.

Criminal Law, John M. Schmolesky

Faculty Articles

No abstract provided.

In Defense Of The Contract At Will, Richard A. Epstein

Faculty Articles

In the remainder of this paper, I examine the arguments that can be made for and against the contract at will. I hope to show that it is adopted not because it allows the employer to exploit the employee, but rather because over a very broad range of circumstances it works to the mutual benefit of both parties, where the benefits are measured, as ever, at the time of the contract's formation and not at the time of dispute. To justify this result, I examine the contract in light of the three dominant standards that have emerged as the test …

Toward A Revitalization Of The Contract Clause, Richard A. Epstein

Faculty Articles

This article concentrates on only one of the constitutional provisions that bears on the general topic of economic liberties: the contract clause, which reads: "No State shall .. .pass any . .. Law impairing the Obligation of Contracts . . . ," I wish to defend the proposition that, properly construed, the clause extends substantial protection to economic liberties against legislative, and perhaps judicial, interference. My task in the first part of the article is to explain how and why the Constitution itself commits us to a theory of governance that, to understate the point, leaves to state governments only …

Dictatorship On Trial: Prosecution Of Human Rights Violations In Argentina, Emilio Fermin Mignone, Cynthia Estlund, Samuel Issacharoff

Faculty Articles

Between 1976 and 1983, a military dictatorship ruled Argentina and brought that country into an era of state-directed terror aimed at the civilian population. During that period, a small and vulnerable human rights community, allied with international backers, attempted to stay the hand of the military state and provide a measure of protection for the victims and potential victims of the dictatorship. The struggle was to defend the most elementary of human rights: freedom from arbitrary detention, torture, and summary execution. While the stakes in this struggle were high-life or death for thousands of individuals-it was nonetheless an unfortunately familiar …

Mueller V. Allen: A Fairer Approach To The Establishment Clause, Michael S. Ariens

Faculty Articles

The decision upheld by the United States Supreme Court in Mueller v. Allen helds a new dawn in establishment clause jurisprudence. This five-to-four decision, written for the majority by Justice Rehnquist, upheld a Minnesota statute permitting taxpayers to deduct the tuition, textbook, transportation, and instructional material expenses of their children when calculating their state tax liability. By this decision, the Court has cleared the way for an accommodation between church and state that more equitably recognizes the principles and values that the religion clauses were intended to protect.

Following a review of the history of the establishment clause, tuition tax …

Federalism And Supreme Court Review Of Expansive State Court Decisions: A Response To Unfortunate Impressions, David A. Schlueter

Faculty Articles

This article addresses the Burger Supreme Court’s approach to federalism and concludes that the Court seems to be reordering federal-state judicial relations. This reordering appears to be occurring at the expense of both state autonomy and individual liberties, especially the rights of state criminal defendants.

Although there certainly have been cases which suggest the Burger Court has a lopsided federalism, upon thorough analysis of these cases, this determination is shown to be incorrect. In fact, the present Court greatly respects state autonomy and the independence of state courts. Further, the Supremacy Clause requires the Court to serve as final arbiter …

Ratification Of The Fourteenth Amendment In North Carolina, James E. Bond

Faculty Articles

The present article focuses on the ratification debate in North Carolina. That debate is instructive for several reasons. In the first place, the legislature considered the amendment on two separate occasions. In December 1866, the legislature overwhelmingly rejected it. Little more than eighteen months later, a new legislature overwhelmingly endorsed it. Second, North Carolinians fought several political battles between 1866 and 1868, and in those battles they often debated the meaning of the fourteenth amendment. Third, North Carolinians adopted a new constitution in 1868 and thereafter enacted reform legislation, much of which reflected their understanding of the concepts embodied in …

Judicial Review And Moral Progress: Searching For The Better Angels Of Our Nature, Harry F. Tepker

Faculty Articles

No abstract provided.

Judicial Enforcement Of Fair Housing Laws: An Analysis Of Some Unexamined Problems That The Fair Housing Amendments Act Of 1983 Would Eliminate, Willy E. Rice

Faculty Articles

Although the study by the National Committee Against Discrimination in 1979 could not determine the “true” incidence of racial discrimination, it did produce some startling results. For example, if a black person were to visit three private apartment complexes, the probability of his encountering racial discrimination would be sixty-one percent. Moreover, an increase in the number of visits dramatically increased the probability of discrimination. The probability of discrimination would be ninety percent if the black prospective renter were to visit seven complexes. The likelihood of discrimination in the sale of housing was also found to be high. For instance, if …

Linguistic Diversity On The Airwaves: Spanish-Language Broadcasting And The Fcc, Bill Piatt

Faculty Articles

Hispanics constitute an increasingly substantial segment of the United States population. The Spanish language is an important part of the Hispanic culture, and is spoken in a large number of American homes. However, while the Federal Communications Commission (FCC) and the courts have required broadcasters to present programming to meet the needs of various minority groups, including the Hispanic community, there are no clear guidelines as to when this community has a right to programming in Spanish. Conversely, broadcasters have no guidelines for determining their obligation, if any, to present Spanish programming arises.

To resolve this issue, it is helpful …

New Jersey V. T.L.O.: The Supreme Court’S Lesson On School Searches, Gerald S. Reamey

Faculty Articles

Considerable disagreement persists as to the fourth amendment rights of students within schools. Particularly, this disagreement regards the extent to which fourth amendment rights possessed by students may frustrate reasonable attempts by educators to maintain the order necessary to preserve an educational environment.

In New Jersey v. T.L.O., the Supreme Court considered an argument advanced by the State of New Jersey that the “pervasive supervision” of school children diminishes the legitimate expectation of privacy a child may have in property “unnecessarily” brought to school. The Court concluded that the necessity of maintaining security and order in the educational environment was …

Judicial Federalism And Supreme Court Review Of State Court Decisions: A Sensible Balance Emerges, David A. Schlueter

Faculty Articles

State courts are free to exercise final authority as arbiters of state law and adopt state standards that protect individual rights more than federal law. While state courts have responded to such urgings with expansive rulings, they have not always been careful about spelling out in their decisions whether they were relying on state law, federal law, or both. This judicial imprecision creates a jurisdictional dilemma for the Supreme Court when it is asked to review the state court decision. If the state's decision rests on independent and adequate state grounds, the Court will apply judicial restraint and decline review. …

North Carolina's Medicaid Program: The Effects Of The Reagan-Era Budget Reductions, Ken Wing

Faculty Articles

This article is principally a description of the current program and the legislative and administrative changes made in response to the recent federal budget cuts, an assessment of the state's current cost containment strategy, and an analysis of the options facing North Carolina in the years to come.

Regulation In A Liberal State: The Role Of Non-Commodity Values, Richard B. Stewart

Faculty Articles

This Article aims to clarify the background understandings that inform and structure regulatory and administrative law - fields of law long criticized as undisciplined and unordered. A great appeal of the law and economics movement was its promise of a single jurisprudential framework sufficiently general and trenchant to provide a unifying order, here and elsewhere. That movement has provoked competing unitary theories. The inconclusive battle among these theories has reawakened skepticism as to the possibility of any successful unitary theory. The effort to structure law is now shifting to complex theories composed of several different conceptions of legal ordering. Such …

A Theory Of Equal Protection, David A. Dittfurth

Faculty Articles

Equal protection must prohibit arbitrary governmental classifications or differentiation. The Supreme Court is a unique authority because of its power to create constitutional law and because of its symbolic position in this society as a bearer of the Constitution as aegis. The Fourteenth Amendment, which is derived from the Equal Protection Clause, is one of the most important areas of constitutional law.

Governmental decisionmakers must consider equal protection doctrine since they are frequently required to discriminate among those arguably qualified in order to determine who should bear the burden of governmental action or receive the benefits of governmental largess. A …

Women, Work, Welfare, And The Preservation Of Patriarchy, Sylvia A. Law

Faculty Articles

Historically, women have been regarded as unemployable, both because they have been considered physically and morally unsuited for wagework and because law and custom limited their ability to do wage labor by demanding that they do the work of homemaking and of caring for the young and the old. Today, however, most women are in the wage labor market. The central thesis of this Article is that present federal labor and welfare policy "resolve" the conflict between the traditional assumption that women cannot and should not work outside the home and the reality that they do, in ways that are …

Legal Remedial Alternatives For Spouse Abuse In Texas, Gerald S. Reamey

Faculty Articles

There are numerous civil and criminal legal alternatives available in Texas for dealing with abuse between adult cohabitants. Current and proposed systems may protect victims more effectively and deter abusers, and empirical studies can reveal the direction legal systems should take to pinpoint the flaws and shortcomings in present legal responses to abuse.

The difficulty of assessing the extent of spousal abuse increases the difficulty of finding an effective legal remedy. Abuse, like rape, is far less likely to be reported than other crimes. In addition, spousal abuse is hard to define in any meaningful statistical manner because of the …

Berger Redux, Stephen Gillers

Faculty Articles

Book review of Death Penalties: The Supreme Court's Obstacle Course by Raoul Berger, Harvard University Press, 1982.