Digital Commons Network^™

Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr.

Faculty Scholarship

In two recent and highly technical decisions – Amchem Products v. Windsor and Ortiz v. Fibreboard Corp. – the Supreme Court has recognized that a serious potential for collusion exists in class actions and has outlined a concept of "class cohesion" as the rationale that legitimizes representative litigation. Although agreeing that a legitimacy principle is needed, Professor Coffee doubts that "class cohesion" can bear that weight, either as a normative theory of representation or as an economic solution for the agency cost and collective action problems that arise in representative litigation. He warns that an expansive interpretation of "class cohesion" …

Towards A Defensible Free Exercise Doctrine, Frederick Mark Gedicks

Faculty Scholarship

Almost from the moment that the Supreme Court abandoned the religious exemption doctrine in Employment Division v. Smith, its defenders have worked to bring it back. More than a decade later, however, Smith remains well-entrenched; not only has the Court confirmed Smith's basic holding, but it also struck the Religious Freedom Restoration Act, Congress's first effort to restore the exemption doctrine, at least as it applied to the states.

Proponents of religious exemptions cannot ignore the hard truth that they can no longer be defended. During the nineteenth and early twentieth centuries, American society viewed the practice of religion-mostly Christian …

Gang Loitering, The Court, And Some Realism About Police Patrol, Debra A. Livingston

Faculty Scholarship

When the Supreme Court voted to review the decision of the Illinois Supreme Court holding Chicago's "gang loitering" ordinance invalid on federal constitutional grounds, it seemed plausible that City of Chicago v Morales would be the occasion for a major statement from the Court on a set of complex issues – issues including not only the nature of the police officer's authority to maintain order in public places, but also the relative roles of politics and judicial decision making in delineating both the limits on this authority and the latitude left to police to employ discretion in its exercise. After …

William H. Simon: Thinking Like A Lawyer – About Ethics, William H. Simon, Robert D. Taylor, Bruce S. Ledewitz, Margaret K. Krasik, Sean P. Kealy

Faculty Scholarship

This is the edited text of a panel discussion held as part of the legal ethics curriculum at Duquesne University Law School on October 24, 1999. The speakers have had the opportunity to update and correct this text; therefore, this printed version may deviate slightly from what was presented.

Reforming The Unbargained Contract: Avoiding Bondholder Claims For Surprise Par Calls, Robert S. Blanc, Randy D. Gordon

Faculty Scholarship

Until the last couple of decades, interest rates remained relatively stable, thus providing little incentive for corporate borrowers to seek novel ways of redeeming purportedly non-callable bonds at par. But with the advent of junk bonds and periods of great interest rate volatility, issuers have been provided with powerful incentives to explore the relatively uncharted waters of par calls. This Article examines the authority for and legality of such par calls and ultimately proposes a redefinition of the issuer-bondholder relationship. This redefinition accounts for the realities of the marketplace and should lead a return to more settled expectations in both …

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Aaron Twerski, N. B. Cohen

Faculty Scholarship

No abstract provided.

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Neil B. Cohen, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

The Other Way Round, Susan P. Koniak

Faculty Scholarship

There have always been sexy subjects, and there always will be. Some topics are sexy for a time and then fade into obscurity or become quaint anachronisms; the now-omnipresent Y2K problem is sure to meet some such fate. But there are other topics, such as, the connection between identical twins, incest, extraterrestrial life, dinosaurs, the American Civil War and evil, which just stay in vogue. Topics guaranteed to draw a crowd.

I am just as likely to be in that crowd as the next person. Having spent part of this afternoon watching a History Channel presentation on the Lizzie Borden …

Standards Of Care And Standard Form Contracts: Distinguishing Patient Rights And Consumer Rights In Managed Care, Wendy K. Mariner

Faculty Scholarship

There is hardly a legislature in the country that is not currently debating the issue of patient rights in managed care. Not surprisingly, legislators, as well as reporters covering the debate, have called upon George J. Annas, Edward R. Utley Professor of Health Law and Chair of the Health Law Department at Boston University, for information and advice. Professor Annas has earned the title of "father of patient rights" for his decades of research, writing, and advocacy on behalf of individuals who need health care and deserve justice.

Today, however, one might ask whether patient rights are compatible with managed …

Protecting Digital Works: Copyright Or Contract, Glynn Lunney

Faculty Scholarship

Since at least 1586, proponents of copyright have pointed to the tremendous ease with which competitors can copy works of authorship as the central justification for copyright protection. Because such works can be easily copied, a competitor could, in the absence of copyright, copy a work, and thereby avoid a large part of the original author's expense. This copying would allow competitors to undercut the original author's price for the work, and would deprive the original author of a fair wage for the labor and creativity she invested in the work. Faced with the threat of such competition, many would-be …

Delegation And The Constitution, Gary S. Lawson

Faculty Scholarship

In 1690, John Locke wrote that legislators “can have no power to transfer their authority of making laws and place it in other hands.” A century later, in 1789, the federal Constitution provided that “all legislative Powers herein granted shall be vested in a Congress of the United States.” A little more than a hundred years later, in 1892, the Supreme Court declared in Field v. Clark: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

In 1989, nearly …

Herding Cats: Improving Law School Teaching, Ted Occhialino, Michael M. Simon, Robert L. Fried

Faculty Scholarship

What makes a good law teacher? Is excellence in teaching largely a matter of intellectual brilliance, of superior organization and delivery of material, of friendliness and fairness to one's students? Or does it have more to do with style, with stage presence, with the ability to engage an audience in the act of reflective and spontaneous thinking?

We conducted a survey, described below, of programs to improve teaching in law schools. We found that the efforts law schools make to improve teaching are generally focused on newer faculty and take place in the emotionally charged context of tenure decisions. Few …

A Proposal To Eliminate Director Standards From The Model Business Corporations Act, D. Gordon Smith

Faculty Scholarship

The Committee on Corporate Laws of the Business Section of the American Bar Association recently adopted amendments to the section of the Model Business Corporation Act (MBCA) enunciating standards of director performance. In place of the current section 8.30, which has been adopted by 42 states, the Committee has adopted two sections - one defining a standard of conduct and one defining a standard of liability for corporate directors. This paper argues that these new standards do not achieve the goals of bifurcation. Moreover, if adopted and used, the new standards will engender confusion and possibly inequitable results. This paper …

Team Production In Venture Capital Investing, D. Gordon Smith

Faculty Scholarship

Entrepreneurs and venture capitalists engage in team production. Inherent in team production is an incentive problem: team members have an incentive to shirk. The incentive to shirk derives from the inability to monitor team members perfectly and compensate them based on productivity. Economic models of team production teach that solutions to shirking must involve (1) a principal (2) with authority to break the budget by realigning the claims of team members through use of a penalty or a bonding arrangement (3) based only on observations of team output, not on monitoring of individual inputs. This paper analyzes the team production …

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), M.V.H., Laura Spitz

Faculty Scholarship

LEAF submits that the heterosexual definition of spouse ins. 29 of the Family Law Act R. S.O. 1990 c. F .3 completely denies lesbians who otherwise meet the tl:1reshoid criteria to apply for a support award. The effect of this denial violates lesbians' right to equal benefit and protection of the law contrary to s. 15(1) of the Charter, and cannot be justified under s.1 of the Charter.

Open Texture And The Possibility Of Legal Interpretation, David B. Lyons

Faculty Scholarship

This essay concerns the possibility of interpreting law. It is always possible to interpret law in the weak sense, which assigns meaning it is not assumed the law previously possessed. My concern here is interpretation in the strong sense, which, if successful, reveals meaning that lies hidden in the law. Theories of legal interpretation have recently received much theoretical attention. The received theory of law's open texture suggests that this interest is misplaced.

Global Capitalism And Nationalist Backlash: The Link Between Markets And Ethnicity, Amy L. Chua

Faculty Scholarship

No abstract provided.

The Molecular Ism In Low Surface Brightness Disk Galaxies, J. Christopher Mihos, Stacy S. Mcgaugh

Faculty Scholarship

We present models for the interstellar medium in disk galaxies. In particular, we investigate whether the ISM in low surface brightness galaxies can support a significant fraction of molecular gas given their low metallicity and surface density. It is found that the abundance and line brightness of CO in LSB galaxies is small and typically below current observational limits. Still, depending on physical details of the ISM, the fraction of gas in the form of molecular hydrogen can be significant in the inner few kilo-parsecs of a low surface brightness galaxy. This molecular gas would be at temperatures of ∼ …

Still In The Dark: Disappointing Images Of Women Lawyers In The Movies, Stacy Caplow

Faculty Scholarship

No abstract provided.

Youthbuild, Dorothy Stoneman, Fatma Marouf

Faculty Scholarship

YouthBuild is a comprehensive youth and community development program that simultaneously addresses several core issues facing lowincome communities: education, housing, jobs, and leadership development. It is based on the conviction that the energy and intelligence of young people need to be liberated and enlisted in solving the problems facing our society, and that low income young people are an untapped resource for solving the problems facing their own communities.

YouthBuild engages disconnected young men and women who have no apparent path to a productive future by teaching them basic academic, life, leadership, and employability skills through work on community housing …

The Literature Of Contemporary Witchcraft: Formalists, Femininsts, And Free Spirits, Marilyn R. Pukkila

Faculty Scholarship

A bibliographic essay on the writings of contemporary Witchcraft, from the late 1890s to 1998.

Physicians As Advocates, William M. Sage

Faculty Scholarship

The principal theme of this Article is that many dimensions of physicians' advocacy in managed care remain to be established, and those dimensions may turn out to be inconsistent with one another or with normative goals for the health care system. Specifically, attempting to map physician behavior onto an advocacy template created for lawyers raises three difficult questions. First, given the undisputed importance of clinical expertise to an efficient health care system, should physicians' primary role be to advocate for causes or to direct the provision of care? Second, would the medical professions' reputation for independent competence withstand the adversarial …

Translating Legal Terms In Context, Antoinette M. Sedillo Lopez

Faculty Scholarship

This article reviews a number of Spanish/English legal dictionaries, evaluating the relative merits and features of each. Translating legal terms requires an understanding of both the legal context in which the term is used and the legal context in which the translation is intended. Thus, this review of legal dictionaries concentrates on evaluating the authors'/editors' understanding of how the terms are used in the two legal cultures, as well as in two different languages.

Reinventing Environmental Regulation Through The Government Performance And Results Act: Are The States Ready For The Devolution?, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

From Property To Personhood: What The Legal System Should Do For Children In Family Violence Cases, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

An Interdisciplinary Analysis Of Statements To Mental Health Professionals Under The Diagnosis Or Treatment Hearsay Exception, John J. Capowski

Faculty Scholarship

No abstract provided.

Family Ties: Solving The Constitutional Dilemma Of The Faultless Father, David D. Meyer

Faculty Scholarship

No abstract provided.

From Nation State To Failed State: International Protection From Human Rights Abuses By Non-State Agents, Jennifer Moore

Faculty Scholarship

In her seminal 1951 work The Origins of Totalitarianism, the political philosopher Hannah Arendt examined historical developments in Europe during the period between the two World Wars and declared that "the transformation of the state from an instrument of the law into an instrument of the nation had been completed." While Arendt focused on threats to individual and minority rights posed by the repressive "nation-state," her critique also identified the complicity of an international legal system that accorded undue deference to sovereign prerogative. The collapse of the League of Nations, the ascendancy of the Nazi Party in Germany, and the …

[On The] Road Back In: Community Lawyering In Indigenous Communities, Christine Zuni Cruz

Faculty Scholarship

The idea of professional success,especially in the elite legal profession, as being closely linked to community or having corresponding value to the community has directly affected my view of individual lawyering. Excerpts reprinted in: Social Justice: Professionals, Communities and Law, 11 (Mahoney, Calmore, Wildman, eds., 2003); Lawyers Ethics and The Pursuit of Social Justice and Ethics 201 (Susan D. Carle, ed., 2005); Clinical Anthology, Readings for Live-Client Clinics, (2d Ed., A.J. Hurder, et al., eds., 2011).

Gagged But Not Bound: The Ineffectiveness Of The Rules Governing Judicial Campaign Speech, Max J. Minzner

Faculty Scholarship

This article argues that while the text and the history of the gag rule would seem to indicate that implied commitments are prohibited, candidates have a wide variety of methods available to signal voters how they might decide cases if they reach the bench. Courts have failed to recognize the importance of limiting speech other than traditional policy promises due to a failure to adequately consider the most important motivating factor behind the gag rule: providing litigants impartial adjudication. Because courts have not made this the primary consideration in the gag rule cases, speech occurs in campaigns that would otherwise …