Digital Commons Network^™

Free Speech In The United States And Canada, Kent Greenawalt

Faculty Scholarship

This comparison of freedom of speech in the United States and Canada concentrates on Supreme Court decisions in the two countries and on kinds of speech mainly engaged in by extreme dissenters and political outsiders. After brief comments about constitutional language and general approaches, I discuss subversive speech and other speech that encourages criminal acts, hate speech, symbolic speech, and public demonstrations.

In both countries, a major premise of modern adjudication is that freedom of expression is a central feature of liberal democracy. Government "by the people," even in the extended sense of government by representatives, requires that citizens openly …

Six Conservatives In Search Of The First Amendment: The Revealing Case Of Nude Dancing, Vincent A. Blasi

Faculty Scholarship

The future of political freedom in the United States hardly turns on whether women have a First Amendment right to dance in the nude in bars and peep shows. The future of artistic freedom is perhaps implicated by this question, but only if the law's demand for general principle prohibits judges from treating expressive nudity in those environments as fundamentally different from expressive nudity in ballet performances, museum exhibitions, and films. Barnes v. Glen Theatre, Inc. is an interesting and potentially important case not because of the significance of the specific issue it decided, but because it provoked a lively …

The International Code Of Marketing Of Breast-Milk Substitutes: Survey Of Legislation And Other Measures Adopted (1981-1991), Gillian L. Lester

Faculty Scholarship

Since the adoption of the International Code of Marketing of Breast·milk Substitutes in 1981, Member States of the World Health Organization have responded in varying degree and manner in giving effect to it. WHO has prepared a comprehensive summary, organized on a country-by-country basis, of government action in this regard (document WHO /MCH/NVT /90.1). The present paper complements chis summary, and increases its usefulness, by focusing on the Code's individual articles and describing how each has been given expression through national legislation or other measures. Their adoption is one aspect of the wider efforts Member States are making to address …

The Legal Framework For Private Sector Development In A Transitional Economy: The Case Of Poland, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller, Peter G. Ianachkov, Daniel T. Ostas

Faculty Scholarship

The economies of Central and Eastern Europe are in the midst of an historic transition from central planning and state ownership to market driven private sector development. This transition requires comprehensive changes in the "rules of the game" – i.e. the legal framework for economic activity. Markets presuppose a set of property rights and a system of laws or customs that enable the exchange of those rights. The legal framework in a market economy has at a minimum three basic functions:

1. to define the universe of property rights in the system,
2. to set the rules for the entry and exit …

The End Of New York Times V Sullivan: Reflections On Masson V New Yorker Magazine, Lee C. Bollinger

Faculty Scholarship

Virtually every year since New York Times v Sullivan, the Supreme Court has decided at least one or two First Amendment cases involving the press. This now seemingly permanent, annual pageant of media cases undoubtedly has significance for the development of both constitutional law and the character of American journalism, though oddly that significance has been little explored in the scholarly literature. This past year the Court had two cases, both of which received an unusual amount of discussion within the press. It is, of course, understandable, even if not wholly defensible, for the press to give disproportionate coverage …

Foreword, Lee C. Bollinger

Faculty Scholarship

The mass media are too important to American democracy, too capable of causing injury, and too easy a target for the perennial wish to find a scapegoat for the country's ills ever to be very far from the center of public attention and debate. That is certainly true today. And, though every generation probably thinks that it stands at a crossroads on the question what to do with the media, I would nevertheless venture to say that the issues of our time are more serious, and more complex, than ever before. One can safely predict, in any event, that we …

European Community And Eastern Europe: Deepening And Widening The Community Brand Of Economic Federalism, The Symposium: Federalism For The New Europe, Roger J. Goebel

Faculty Scholarship

The purpose of this article is to analyze the federal character of the European Community with particular reference to its relation to the new democracies of central and eastern Europe. This article consists of five parts. In Part I, the Court of Justice's constitutional doctrines describing the supranational character of the Community will be presented. Parts II and III will outline and analyze the Community's scope of action and its institutional structure, both as originally conceived and as modified by its history, notably by the SEA. Part IV will review and analyze the most important changes affecting the Community's scope …

Rediscovering The Republican Origins Of The Legal Ethics Codes, Russell G. Pearce

Faculty Scholarship

Many commentators wrongly assume that the hired gun ideal is the foundation of our legal ethics codes. This article explains that this assumption is based on an historical mistake that has consequences for interpreting the modern codes. Judge George Sharswood, the nineteenth century scholar whose work provided the basis for the 1908 A.B.A. Canons of Ethics, had a republican conception that rejected the adversarial ethic in favor of a more nuanced conception that combined loyalty to clients with a thick obligation to the public good that both bounded client representation and required lawyers to provide political leadership. Although the emphasis …

Benign Restraint: The Sec's Regulation Of Execution Systems, David M. Schizer

Faculty Scholarship

To the handful of traders who founded the New York Stock Exchange (NYSE) in 1792 – and perhaps even to the securities traders of the 1960's – today's securities markets would be virtually unrecognizable. New communications and data processing technologies, the globalization of investment portfolios, and a surge in trading volume have created new needs and possibilities. As a result, revolutionary advances have occurred in the design and performance of execution systems: the technologies (computers, telephones, modems) and formats (auction-based stock exchanges, dealer-based "over-the-counter" markets, computerized single price auctions) that traders use to conduct trades. These advances enable trades on …

A Tale Of Two Professions: The Third-Party Liability Of Accountants And Attorneys For Negligent Misrepresentation, Gary S. Lawson, Tamara Mattison

Faculty Scholarship

To whom does a professional owe a duty of care when providing professional services?1 The traditional answer, grounded in principles of contractual privity, is that professionals are liable for negligence to their clients, and perhaps to third-party beneficiaries of the client-professional relationship, but that their noncontractual obligations generally extend no further than a duty not to commit fraud.2 In the past two decades, however, courts have become increasingly willing to hold a wide range of professionals liable for their negligence to parties outside the chain of privity. 3 The accompanying growth of third-party4 lawsuits alleging professional negligence and in particular …

The Private Attorney General Meets Public Contract Law: Procurement Oversight By Protest, Robert C. Marshall, Michael J. Meurer, Jean-Francois Richard

Faculty Scholarship

In this Article, protests are analyzed, from both an economic and legal perspective, as a decentralized mechanism for oversight of the competitive procurement process. Attention focuses on the protest process at the General Services Administration Board of Contract Appeals (hereinafter "the Board" or "GSBCA"). It is argued that protests are an effective means of deterring and correcting agency problems among procurement personnel and, consequently, accomplishing the procurement objectives of the government. Drawbacks of the protest process are identified, explanations are offered for the existence of these negative side effects, and solutions are proposed. In addition, protests are compared to centralized …

Aggregation Of Aqueous Suspensions Of Phospholipid Tubules, Min-Hua Lu, Jerome B. Lando, J. Adin Mann Jr., Rolfe G. Petschek, Charles Rosenblatt

Faculty Scholarship

[No abstract available]

Through The Looking Glass Darkly: Cleveland V. Piper Aircraft And Second Collision Liability, David J. Stout

Faculty Scholarship

The holding in Clevland v. Piper Aircraft Corpororation is in direct conflict with the analysis for the tort of crashworthiness and operates to undermine the fundamental social policies which formed the basis for the tort of crashworthiness. A thorough understanding of the Tenth Circuit's opinion, which is not binding on New Mexico state courts, and the reasons why the court misconstrued New Mexico law is essential for the successful prosecution of a crashworthiness case

The Violence Of Privacy, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

The Second Circuit's Role In Expanding The Sec's Jurisdiction Abroad, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Greenmail, The Control Premium And Shareholder Duty, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Second Circuit's Role In Expanding The Sec's Jurisdiction Abroad, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

L'Harmonie Dissonante: Strict Products Liability Attempted In The European Community, Anita Bernstein

Faculty Scholarship

No abstract provided.

Dynamics Of The Nematic-Electroclinic Effect, Rajesh Ambigapathy, Rolfe G. Petschek, Charles Rosenblatt

Faculty Scholarship

The effective response time eff of the nematic-electroclinic effect was determined as a function of driving frequency and temperature. Near the nematicsmectic-A transition temperature TNSm-A, eff was found to be a function of driving frequency, indicating the existence of more than one physical process. Several degrees above TNSm-A, eff was found to be frequency independent up to 100 kHz. At these temperatures, moreover, the effective response times are quite small, of order 100 ns.

Copyrights And State Liability, Beryl R. Jones-Woodin

Faculty Scholarship

No abstract provided.

Monologue Or Dialogue In Management Decisions: A Comparison Of Mandatory Bargaining Duties In The United States And Sweden, Timothy A. Canova

Faculty Scholarship

Management and labor are adversaries in both U.S. and Swedish industrial relations. The Swedish model, however, is marked by a continual dialogue between the adversaries with the objective of achieving mutual understanding on a wide range of issues. This dialogue has been fostered by Swedish labor law reforms, particularly the Swedish Act on Co-Determination, along with a comprehensive labor market policy to promote employment. The result of such reasoned dialogue is greater labor support for industrial restructurings and management support for the technological modernization of industry. The American system could better be characterized as a monologue. In the U.S. the …

The First Amendment At Home And Abroad, Pnina Lahav

Faculty Scholarship

The powerful appeal of the First Amendment flows from the rhetoric it has inspired. Holmes's "[W]hen men have realized that time has upset many fighting faiths, they may come to believe ... that the best test of truth is the power of the thought to get itself accepted in the competition of the market"; Brandeis's " ... the greatest menace to freedom is an inert people; ... order cannot be secured merely through fear of punishment for its infraction; ... it is hazardous to discourage thought, hope and imagination; fear breeds repression; ... repression breeds hate; ... hate menaces stable …

Allocating The Costs Of Parental Free Exercise : Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Impeachment Of Jury Verdicts: Tanner V. United States And Beyond, James W. Diehm

Faculty Scholarship

No abstract provided.

Teaching Students How To Think Like Lawyers: Integrating Socratic Method With The Writing Process, Mary Kate Kearney, Mary Beth Beazley

Faculty Scholarship

No abstract provided.

The Failure Of The Florida Judicial Review Process To Provide Effective Incentives For Agency Rulemaking, Johnny C. Burris

Faculty Scholarship

No abstract provided.

Good Legal Writing: A Guide For The Perplexed, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

Mental Health Malpractice In The 1990s, Steven R. Smith

Faculty Scholarship

This article analyzes the current levels and kinds of mental health malpractice claims. It also discusses the direction of individual and institutional malpractice in the 1990s and considers potential reforms. Finally, the article argues that the current system is inadequate to deal with many mental health injuries and that patient plaintiffs should have the option of pursuing malpractice claims in a private, less threatening forum.

Evidence Engendered, Kit Kinports

Faculty Scholarship

Part I of this article briefly describes feminist legal theory and its evolution. Part II then discusses the extent to which evidence as a whole is a gendered topic that reflects predominantly male traits and ideals, and Part III analyzes various specific evidentiary doctrines from a feminist perspective. Finally, Part IV examines way of incorporating feminist theories in teaching an evidence course.

Is It Time For A Federal Corporation Law, Roberta S. Karmel

Faculty Scholarship

No abstract provided.