Digital Commons Network^™

Application Of International Water Law To Transboundary Groundwater Resources, And The Slovak-Hungarian Dispute Over Gabcikovo-Nagymaros, Gabriel Eckstein

Faculty Scholarship

The growth in global population and economic development has resulted in tremendous pressures on existing sources of fresh water. Human water use over the past three centuries increased by a factor of thirty-five and is growing by four to eight percent annually. Coupled with recurring international disputes over water resources, poor water management, and the realization that water is an indispensable but finite resource, these trends have propelled the use and management of transboundary groundwater resources to the forefront of legal debate.

Until recently, matters relating to groundwater resources were relatively ignored in the context of international law applicable to …

Am I My Partner's Keeper? Peer Review In Law Firms, Susan Saab Fortney

Faculty Scholarship

This article explores the concept of peer review in the practice of law. The article begins with an introduction to law partners’ liability exposure for the acts or omissions of their law partners. The article explains how this exposure has traditionally been approached as vicarious liability and how the government is attempting to transform these issues into direct liability by using failure to monitor claims. Part I briefly reviews perspectives on the emergence, growth, and structure of law firms, then uses a matrix to show how firm culture and organizational structure affect internal and external controls on attorney conduct. Part …

Testing Children For Genetic Predispositions: Is It In Their Best Interest?, Diane E. Hoffmann, Eric A. Wulfsberg

Faculty Scholarship

No abstract provided.

How Can A Product Be Liable?, Anita Bernstein

Faculty Scholarship

No abstract provided.

Business Vs. Medical Ethics: Conflicting Standards For Managed Care, Wendy K. Mariner

Faculty Scholarship

The increased competition for a share of the market of insured patients, which arose in the wake of failed comprehensive health care reform, has provoked questions about what, if any, standards will govern new “competitive” health care organizations. Managed care arrangements, which typically shift to providers and patients some or all of the financial risk for patient care, are of special concern because they can create incentives to withhold beneficial care from patients. Of course, fee-for-service (FFS) medical practice creates incentives to provide unnecessary services, and managed care can avoid that type of harm. Still, as Edmund Pellegrino has noted, …

Colloquium - Gender, Law And Health Care: New Perspectives For Teaching And Scholarship: The Role Of Gender In Law And Health Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Review Of "Constitutional Torts" By Sheldon H. Nahmod, Michael L. Wells, Thomas A. Eaton, Jack M. Beermann

Faculty Scholarship

The most interesting issues in the field of constitutional torts, involving the legal and moral bases for the government's responsibility for injuries it causes, are the most difficult ones for lawyers to explore. The question whether, as a moral or social policy matter, governments and government officials should enjoy immunities or other defenses not available to private individuals is rarely confronted directly in judicial opinions or in scholarship on constitutional torts, yet it lurks behind many of the doctrinal issues that come up in constitutional tort litigation.¹ A slight scratch on the surface of doctrines as disparate as official …

House Passess Unbalanced Clean Water Act, Denise D. Fort

Faculty Scholarship

The Clean Water Act and the associated state statutes and regulations provide the framework for New Mexico's regulation (and nonregulation) of our rivers and streams. Both the federal and state laws need improvement if they are to work in New Mexico. As readers of The Green Fire Report well know, the "improvements" contemplated by the new Congress are unlikely to improve our water. H.R. 961, the House bill recently passed by the House, is simply unacceptable. President Clinton has indicated that he will veto the bill as passed by the House. Your efforts are needed to contact your federal legislators …

Assessing The Evolution And Available Actions For Recovery In Cultural Property Claims, Joshua E. Kastenberg

Faculty Scholarship

United States laws regarding antiquities are not settled, but an historic legal overview provides some guidance to the direction of cultural property claims. These laws gain importance with the realization that art is second only to narcotics in worldwide illegally trafficked items. Furthermore, there is an abundance of disputed cultural property within legitimate interests, such as museums and personal collections. Thus, before taking an overview of current legal protections, it may be helpful to briefly examine two current controversies.

Elizabeth's Story: Exploring Power Imbalances In Divorce Mediation, Scott H. Hughes

Faculty Scholarship

Case study of many spouses who enter the divorce process with severe deficits in their abilities to deal with the emotional, economic, intellectual, and logistical issues which arise. Mediation may not be adviseable when there is an inequality of bargaining power due to abuse, inexperience, ignorance, socialization and/or the grieving process.

Purification Of A Variant-Specific Surface Protein Of Giardia Lamblia And Characterization Of Its Metal-Binding Properties, Mark R. Chance

Faculty Scholarship

Giardia lamblia, an intestinal parasite of humans and other vertebrates, undergoes surface antigenic variation by modulating the expression of different variant-specific surface proteins (VSP). VSPs are cysteine-rich surface proteins that bind zinc and other heavy metals in vitro. We developed an immunoaffinity chromatographic method to purify a VSP in order to determine its biochemical properties. The sequences of two different proteolytic fragments agreed with the sequence deduced from the cloned gene, and amino-terminal sequence indicated the removal of a 14-residue signal peptide, consistent with the transport of VSP to the cell surface. The protein is not glycosylated and has an …

Genetic Information And Health Insurance: State Legislative Approaches, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The "Straight Mind" In Russ’S The Female Man, Susan Ayres

Faculty Scholarship

In The Female Man Russ contrasts our present-day heterosexual society with two revolutionary alternatives: a utopian world of women and a dystopian world of women warring with men. The novel functions as what Monique Wittig calls a "literary war machine" because it tries "to pulverize the old forms and formal conventions." Specifically, Russ critiques the "straight mind"—heterosexual institutions that regulate gender—by showing how two representatives from "our world" respond to those institutions. She also shows two alternative worlds that further undermine, but do not solve, the way heterosexual institutions regulate gender.

In responding to the straight mind and to the …

The Transformation Of U.S. Banking And Finance: From Regulated Competition To Free Market Receivership, Timothy A. Canova

Faculty Scholarship

This article offers a critique of the deregulation of banking and finance that started with the breakdown of the Bretton Woods regime of fixed exchange rates during the Nixon administration, accelerated with interest rate deregulation during the Carter administration, and was deepened during the Reagan administration. Deregulation is seen as a changing of paradigms, from the New Deal regulatory model that limited price competition and channeled credit to socially useful purposes. The monetary and fiscal implications are significant. The regulatory model, particularly in its heyday, served to limit the authority of the Federal Reserve, neutralized monetary policy, and invigorated other …

Comparing Implied And Express Constitutional Freedoms, David S. Bogen

Faculty Scholarship

No abstract provided.

The Reauthorization Of Superfund: Can The Deal Of The Century Be Saved?, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Genetic Discrimination And Health Insurance: An Urgent Need For Reform, Kathy L. Hudson, Karen H. Rothenberg, Lori B. Andrews, Mary Jo Ellis Kahn, Francis S. Collins

Faculty Scholarship

No abstract provided.

Religious Outlaws: Narratives Of Legality And The Politics Of Citizen Interpretation, Barbara L. Bezdek

Faculty Scholarship

No abstract provided.

An Open Letter To Congressman Gingrich, Bruce Ackerman, Akhil Amar, Jack Balkin, Susan Low Bloch, Philip Chase Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein, Harry Wellington

Faculty Scholarship

We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes. This proposal violates the explicit intentions of the Framers. It is inconsistent with the Constitution's language and structure. It departs sharply from traditional congressional practice. It may generate constitutional litigation that will encourage Supreme Court intervention in an area best left to responsible congressional decision.

Unless the proposal is withdrawn now, it will serve as an unfortunate precedent for the proliferation of supermajority rules on a host of different subjects in the future. Over time, …

Integrating The "Underclass": Confronting America's Enduring Apartheid, Olatunde C.A. Johnson

Faculty Scholarship

Douglas Massey and Nancy Denton's American Apartheid argues that housing integration has inappropriately disappeared from the national agenda and is critical to remedying the problems of the so-called "underclass." Reviewer Olati Johnson praises the authors' refusal to dichotomize race and class and the roles both play in creating and maintaining housing segregation. However, she argues, Massey and Denton fail to examine critically either the concept of the underclass or the integration ideology they espouse. Specifically, she contends, the authors fail to confront the limits of integration strategies in providing affordable housing or combating the problem of tokenism. Massey and Denton …

Standards Of Professional Conduct In Alternative Dispute Resolution Symposium, John D. Feerick, Carol Izumi, Kimberlee Kovach, Lela Love

Faculty Scholarship

ADR is unique in being interdisciplinary and interprofessional. ADR neutrals perform in a distinctive role and not as members of their own profession. The ADR process demands adherence to policies like voluntariness, respect for party autonomy, and confidentiality, which, in turn, make special ethical demands on ADR neutrals. Thus there are compelling reasons to contemplate an interdisciplinary code of conduct that addresses the professional duties and obligations of ADR neutrals. Standards of conduct for ADR has been a much discussed and debated topic over the past decade, both as to source and content. The two principal sources of standards have …

Dolan V. City Of Tigard: Constitutional Rights As Public Goods, Thomas W. Merrill

Faculty Scholarship

When may the government require that citizens waive their constitutional rights in order to obtain benefits the government has no obligation to provide them? The answer, given by the so-called "doctrine" of unconstitutional conditions, is that sometimes the government may condition discretionary benefits on the waiver of rights, and sometimes it may not. The Supreme Court has never offered a satisfactory rationale for this doctrine, or why it "roams about constitutional law like Banquo's ghost, invoked in some cases, but not in others."

The unconstitutional conditions doctrine directs courts not to enforce certain contracts that waive constitutional rights. Perhaps it …

Business Lawyers And Value Creation For Clients, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

This Symposium marks an important milestone in legal scholarship and education: The spotlight falls on business lawyers for a change. Ten years ago, when one of us first wrote about what business lawyers really do, no one had devoted much attention to this part of the profession. In his broadside against lawyers, Derek Bok, then President of Harvard University and formerly dean of its law school, reserved his invective for litigators and the litigation process. Business lawyers captured the attention of very few critics; even on the unusual occasion when we were noticed, the criticism was at least funny. If …

Trade And Wages: Choosing Among Alternative Explanations, Jagdish N. Bhagwati

Faculty Scholarship

The decline in unskilled workers’ real wages during the 1980s in the United States and the increase in their unemployment in Europe (due to the comparative inflexibility of European labor markets vis-à-vis those in the United States) have prompted a search for possible explanations. This search has become more acute with the evidence that the adverse trend for the unskilled has not been mitigated during the 1990s to date.

A favored explanation, indeed the haunting fear, of the unions and of many policymakers is that international trade is a principal source of the pressures that translate into wage decline and/or …

History 'Lite' In Modern American Constitutionalism, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Twenty-Fifth Amendment: An Explanation And Defense, The, John D. Feerick

Faculty Scholarship

In this article, Dean Feerick reviews the history of presidential succession before the Twenty-fifth Amendment's ratification, the debate and discussion leading to the amendment's adoption, and current criticisms of the amendment from the medical and political community. In particular, Feerick addresses current suggestions for the creation of an independent medical panel to determine presidential inability. He argues that such a panel would be contrary to both the principle of separation of powers and the philosophy of the Twenty-fifth Amendment that those closest to the President ,and those accountable to the public, should be entrusted with the power to declare a …

Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve The Conduct And Reputation Of The Bar, The, Russell G. Pearce

Faculty Scholarship

The Article explains how the Professionalism Paradigm distinguishes between self-interested businesspersons and altruistic professionals who place the public good above their own interests and those of their clients. The legal profession has used this Business-Profession dichotomy to obtain control of the delivery legal services, including a legislative monopoly on the practice of law. Today, the Professionalism Paradigm faces a crisis as leading lawyers, judges, and scholars complain that law has become a business and is no longer a profession. The Article “identifies this shift as a time for hope rather than as a cause for despair. Applying Thomas S. Kuhn's …

Developing A Framework For Empirical Research On The Common Law: General Principles And Case Studies Of The Decline Of Employment-At-Will, Andrew P. Morriss

Faculty Scholarship

Through the use of statistical and econometric techniques, social scientists can offer powerful new insights into the causes and effects of changes in the law. Despite a long tradition of empirical research by both economists and political scientists into diverse political institutions, investigations of the common law using methods more sophisticated than simply counting cases or votes is a relatively recent development. Given the natural laboratory provided by the heterogenous development of the common law in the multitude of jurisdictions in the United States, the lack of such research is surprising. Extending this scholarly tradition to common law subjects promises …

This State Will Soon Have Plenty Of Laws - Lessons From One Hundred Years Of Codification In Montana, Andrew P. Morriss

Faculty Scholarship

Part II of this Article briefly sketches the codification movement in the United States and the conditions in Montana in the 1890s. The remainder of Part II tells the story of Montana's adoption of the Civil, Criminal, Political, and Civil Procedure Codes of 1895. Part III examines in detail the subsequent treatment of some of the employment law sections of the Civil Code. Part IV draws lessons from codification and the Codes' application for future legal reform efforts.

Scenes From The Continuum: Sustaining The Maccrate Report's Vision Of Legal Education Into The Twenty-First Century, J. Michael Norwood

Faculty Scholarship

In 1992, the ABA Task Force on Legal Education and the Profession, under the leadership of its Chairman Robert MacCrate, came out with what has become popularly known as the MacCrate Report. This epochal document has redefined the scope of the current debate on how law school should be taught and what values should make up the core of legal education. In this article, Professor Norwood provides background on the Report and an overview of its contents. He then forecasts the effect it is likely to have in the coming years, noting impediments likely to arise from law schools reluctant …