Digital Commons Network^™

Ethos And Conscience—A Rejoinder, Daniel S. Kleinberger

Faculty Scholarship

In “Wanted: An Ethos of Personal Responsibility,” Professor Kleinberger sought to prompt debate about the moral preconceptions of the legal profession. Professor Morawetz responded in his essay, “Layers and Conscience.” This article responds, commenting on Morawetz’s arguments that (1) excessive pessimism about lawyer morality is unfounded and counterproductive; (2) the public’s antipathy toward lawyers is inevitable given the role lawyers play in our society; (3) codes of ethics can and do have an uplifting influence on the morals of lawyers; and (4) law schools can and do train moral judgment.

Enforcement Of Arbitration Agreements In Securities Fraud Disputes, Robert A. Lusardi

Faculty Scholarship

In this Article, the Author discusses the Supreme Court's increased willingness in recent years to rely on the arbitral process for the resolution of securities disputes, and its willingness to enforce pre-dispute arbitration agreements under the Arbitration Act.

Autopsy Of A Murder: Using Simulation To Teach First Year Criminal Law, Stacy Caplow

Faculty Scholarship

No abstract provided.

Electronic Technology And The Law Firm Librarian, James Hambleton

Faculty Scholarship

Automating the law firm library requires understanding the culture and structure of the firm, and the abilities to work with systems personnel and to select appropriate software. Mr. Hambleton describes these processes and provides examples.

Free Speech Justifications, Kent Greenawalt

Faculty Scholarship

This Article sets out what I believe are the relevant justifications for free speech, the term "free speech" being meant to cover both freedom of speech and freedom of the press. These are the justifications one might use to assess whether communications fall within a political or judicial principle of free speech and how great the protection of the communications that are covered should be. Such assessments are undertaken in a longer study that is mainly about the ways in which different uses of language affect the application of principles of freedom of speech to the criminalization of behavior. That …

The Rebuilding Of Duke University's Law School, 1925-1947, Part 2, Robert F. Durden

Faculty Scholarship

No abstract provided.

Changing Perceptions Into Reality: Fiduciary Standards To Match The American Directors’ Monitoring Function, James D. Cox

Faculty Scholarship

This paper describes the historical fiduciary obligations of the American outside director and contrasts those obligations with prevailing obligations in today’s environment of the monitoring director. Special attention is devoted to the role of outside directors when their firm is the target of a takeover. In no other context are the demands on the outside director greater and more strain placed on the monitoring model than in the context of a corporate takeover. The final section of this paper examines the relief modern statutory provisions provide to the director and the monitoring function

The Uniform Rules On The Liability Of Operators Of Transport Terminals, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Consolidating The Preliminary Injunction Hearing And Trial: Changing The Rules In The Middle Of The Game, Arthur D. Wolf

Faculty Scholarship

In this Article the Author addresses the issues surrounding consolidation, the situation that arises when a court decides the merits of a dispute based solely on the record produced at a hearing on motion for a preliminary injunction. The Author identifies some of the more flagrant abuses that trial and appellate courts have committed in reaching the merits after only a hearing on a motion for preliminary relief. The proposed amendments discussed in the Article would serve both courts and parties. They would prevent the kind of abuses discussed in this article by requiring that the parties be informed of …

Legislative Theory And The Rule Of Law: Some Comments On Rubin, Peter L. Strauss

Faculty Scholarship

Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from …

Privacy And The Regulation Of The New Reproductive Technologies: A Decision-Making Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

This article maps out the territory that must be explored in this very complex area and analyzes the implications of governmental regulation of the new reproductive technology. It suggests that the central issue for analysis is the extent to which authority to make decisions concerning reproductive potential should be allocated to individuals rather than to the government. The article describes approaches to allocating decision-making authority with respect to procreative issues. The first is a rights-based approach which emphasizes individual autonomy; this approach will not permit governmental regulation which interferes with personal autonomy in decision making, at least without good reason. …

Covert Operations, Lori Fisler Damrosch

Faculty Scholarship

As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action – before the intelligence oversight reforms of the l 970s – Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to "perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct," Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an …

Aids, Astrology, And Arline: Towards A Casual Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program]."' In School Board v. Arline, the Supreme Court held that a school teacher with a history of infectious tuberculosis was an "individual with handicaps" protected by section 504, and that the determination of whether she was "otherwise qualified" to teach elementary school required a sound medical assessment of the risks of contagion posed by …

Toward A Constitutional Jurisprudence Of Religious Group Rights, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks …

Faith (Healing), Hope And Charity At The Fda: The Politics Of Aids Drug Trials, George J. Annas

Faculty Scholarship

AIDS forces us to confront our mortality, the limits of modern medicine and the contours of our compassion. How we respond is a measure of our society and a reflection of our values and priorities. As a fundamentally death-denying society, our response has been hampered by denial and shaped by faith that a technological fix will make the AIDS epidemic go away. Technology is our new religion, our "modern" way to deal with death. As novelist Don DeLillo has one of his characters put it to another who is worried about death: you can deny it, you can put your …

The Single European Act: A Constitution For The Community?, George A. Bermann

Faculty Scholarship

If proof were needed that the European Economic Community is still the product of a careful tempering of integrationist impulses with preoccupations of national sovereignty, the recently ratified Single European Act (Single Act or Act) amply supplies it. Although the Single Act represents the most comprehensive revision to date of the Treaty of Rome (EEC Treaty), which established the European Economic Community (European Community or Community), it also reflects the continuing vitality of the view that functional change within the Community takes priority in time over structural and institutional reform. Rather than place European integration on a new set of …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

Current Developments Concerning The Settlement Of Disputes Involving States By Arbitration And The World Court – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Our moderator has asked me to talk about the dialogue between the United States and the Soviet Union. With respect to the general contours of the U.S. proposal, I think it is a very constructive one. I do support it, and I urge you all to study it, comment upon it, and try to improve it to take it a bit further. The main feature of it that I want to mention today is the idea of affirmative enumeration of categories of disputes that would be submitted to the Court for jurisdiction as opposed to the historical approach of accepting …

Independent Agencies – Independent From Whom?, Sally Katzen, Edward Markey, James Miller, Joseph Grundfest, R. Gaull Silberman, Peter L. Strauss

Faculty Scholarship

No abstract provided.

Coming Of Age In A Corporate Law Firm: The Economics Of Associate Career Patterns, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

The traditional American corporate law firm, long an oasis of organizational stability, in recent years has been the subject of dramatic change. The manner in which firms divide profits, perhaps the most revealing aspect of law firm organization because it displays the balance the firm has selected between risk-sharing and incentives, has changed in a critical way. From a long standing reliance on seniority that emphasizes risk-sharing, profit division is shifting to a system based on the productivity of individual partners that emphasizes incentives. With what seems to be only a short time lag from the change in how profits …

Cessation Of Family Violence: Deterrence And Dissuasion, Jeffrey Fagan

Faculty Scholarship

Family violence research has only recently begun to investigate desistance. Recent developments in the study of behaviors other than family violence, such as the use of addictive substances, suggest that common processes can be identified in the cessation of disparate behaviors involving diverse populations and occurring in different settings. Desistance is the outcome of processes that begin with aversive experiences leading to a decision to stop. Desistance apparently follows legal sanctions in nearly three spouse abuse cases in four, but the duration of cessation is unknown beyond short study periods. Batterers with shorter, less severe histories have a higher probability …

Teaching Mediation As A Lawyering Role Developments, Jacqueline Nolan-Haley

Faculty Scholarship

The growth of the alternative dispute resolution (ADR) movement has generated an increased interest in the study and practice of mediation as a nonadversarial method of conflict resolution. With mediation, individuals settle their disputes using a neutral third party who has no power to impose a settlement. Historically, mediation has been widely neglected in legal education, and-except for those involved in the labor field-lawyers have not practiced it. Recent gains in visibility have not necessarily resulted in widespread acceptance of mediation. In fact, mediation has even been openly resisted by some members of the legal profession.

There May Be Cracks In The Foundation: An Analysis Of Pennsylvania's Current Approach To Legislative Review Of Agency Rulemaking , Nicholas J. Johnson

Faculty Scholarship

As the legislative delegation of power to administrative agencies has grown over recent decades, so have calls for controls on agencies exercise of that power and particularly for controls on agency rulemaking. In response, various state legislatures have introduced a myriad of designs introducing legislative oversight and control over administrative regulations. Pennsylvania has joined these states by offering a means of legislative review of agency rulemaking in the form of the Regulatory Review Act of 1989 (Act 19). Pursuant to the Act, the Pennsylvania Legislature created an entity called the Independent Regulatory Review Commission and assigned to the Commission the …

Doe V. Grievance Committee: On The Interpretation Of Ethical Rules, Bruce A. Green

Faculty Scholarship

No abstract provided.

Discovery Vices And Trans-Substantive Virtues In The Federal Rules Of Civil Procedure, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Early Neutral Evaluation: The Second Phase, David I. Levine

Faculty Scholarship

No abstract provided.

The Jurisprudence Of Poetic License, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Admitted But Not Accepted Outsiders Take An Inside Look At Law School, Lois Schwartz, Suzanne Homer

Faculty Scholarship

No abstract provided.

Reconciling Collective Bargaining With Employee Supervision Of Management, Michael C. Harper

Faculty Scholarship

The realities of economic organization in modern industrial states pose a critical dilemma for all who care about democratic ideals. Technological developments and attendant complicated divisions of work have enabled these states to transform their citizens' standards of living; such developments have also, however, brought hierarchical economic organizations' that are unresponsive to the influence of most individual employees. A society that claims to be democratic cannot ignore this condition.² Enhancing individuals' control over their own lives requires institutions that will facilitate democratic decisionmaking about economic production as well as governmental authority.

This Article contributes to thought about such institutions …