Digital Commons Network^™

R. V. Parks: Automatism And Murder, Laura Spitz, Isabel Grant

Faculty Scholarship

In R. v. Parks' the Supreme Court of Canada had the opportunity to clarify the test for distinguishing between insane and non-insane automatism and to locate sleep-walking, or somnambulism, within this dichotomy. Its judgments accomplished neither purpose satisfactorily and thus the case is more striking for its unusual facts than for its advancement of the law. The question before the Supreme Court of Canada was simple: was Parks entitled to an absolute acquittal on the basis that his acts were involuntary, or was the involuntariness caused by a disease of the mind, thus leaving him only with the defence of …

Charity Begins At Home: Alternatives In Nonprofit Regulation, Jon M. Garon

Faculty Scholarship

No abstract provided.

Enslaved To Judicial Supremacy?, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Lamellar Ordering In Symmetric Diblock Copolymers, R. A. Sones, E. M. Terentjev, Rolfe G. Petschek

Faculty Scholarship

We calculate the lamellar period L and interphase thickness a of an incompressible melt of symmetric diblock copolymers from the onset of phase segregation (weak segregation limit) to the limit where segregation is almost complete (strong segregation limit) by numerically solving a mean field lattice model, where the lattice spacing is taken small enough to approximate a continuum. Our results for L and a agree with previously derived theoretical formulas in both limits. Based on the first few terms of a Fourier series expansion of the density profile, we show analytically that L = 0.844R(χN)0.571 at the weak segregation limit, …

The History Of The Patent Harmonization Treaty: Economic Self-Interest As An Influence, R. Carl Moy

Faculty Scholarship

How shall the United States decide whether to adopt the Patent Harmonization Treaty? What questions shall we ask? Whose answers shall we trust? What sources of information can provide us with the background needed for these inquiries? This article offers a framework in which to ask, and begin to answer, these questions. It focuses on the international community's past efforts to harmonize the law of patents. It asserts not only that history provides context, but also, that the same history yields lessons directly applicable to many of the treaty's basic issues. Section I discusses the immediate history of WIPO's efforts …

Exile On Main Street: Inmate Transfers From Puerto Rico To The Continental United States Violate Due Process, Justin P. Brooks

Faculty Scholarship

No abstract provided.

Creating A Classroom Component For Field Placement Programs: Enhancing Clinical Goals With Feminish Pedagogy, Linda H. Morton

Faculty Scholarship

This article supports the use of feminist pedagogy to provide the ideal environment for engaging clinic students in self-learning. The author describes the complementary relationship between clinic goals and feminist pedagogy, illustrated through her use of a student-facilitated and non-hierarchical teaching model in her externship classes. The model used provides a unique and valuable educational environment for the training of prospective professionals.

The Pc Harangue, James Boyle

Faculty Scholarship

No abstract provided.

Teach Your Students Well: Valuing Clients In The Law School Clinic., Ann Juergens

Faculty Scholarship

Law schools, teaching primarily by the casebook method, generally avoid the thorny issues that real clients pose.' Recently, however, law review articles and the ""regular classroom"" have referred more frequently to real client stories. Law school clinics are a primary source of client stories. Despite increased attention to clinical programs, client interests are frequently subordinated to the goals of students, clinical law teachers and law schools. This article urges clinicians to constantly evaluate whether and how well they and their students take their clients' interests and perspectives on clinical education into account. It argues that clinic teachers must learn to …

Why The Court Loves Batson: Representation-Reinforcement, Colorblindness, And The Jury, Susan Herman

Faculty Scholarship

No abstract provided.

Extending The Guiding Lefthand Of Counsel: The Minnesota Supreme Court Provides Protection Against Uncounseled Waivers Of The Right To Counsel During Interrogations, Edwin J. Butterfoss, Lisa J. Burkett

Faculty Scholarship

It is the thesis of this Article that the cases on which the Minnesota Supreme Court in Lefthand relied and the policy concerns that motivated the court suggest that the rule of Lefthand should apply to any suspect who has asserted her right to counsel, regardless of whether that suspect is in custody, formally charged, or formally represented by counsel. If the court's ruling in Lefthand is carried to its logical scope, law enforcement officers and prosecutors in Minnesota may find that very early in the criminal justice process they are precluded from obtaining waivers of the right to counsel …

Seton Hall University School Of Law Legislative Bureau Symposium On Securities Law Enforcement Priorities, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Perspectives On A Torts Course, Anita Bernstein

Faculty Scholarship

No abstract provided.

Search, Seizure And The Positive Law: Expectations Of Privacy Outside The Fourth Amendment, Daniel B. Yeager

Faculty Scholarship

This Article is about the misunderstood relationship between the Fourth Amendment and the positive law. It shows how state property law and other expressions of the positive law are more resilient and useful to Fourth Amendment analysis than the Court's decisions of the past three decades recognize.

Who Was That Masked Court - An Introduction To Texas' New Special Court Of Review, Jim Paulsen, James Hambleton

Faculty Scholarship

Suppose, for some reason we can only dimly imagine, that an attorney set out to find a Texas legal definition of "chicken----." Since West's key number system was not set up with any particular items of profanity in mind, a savvy legal researcher would start with the computers. A nationwide LEXIS search quickly retrieves a surprisingly large number of cases mentioning "chicken----," including the US. Supreme Court's groundbreaking ruling that the phrase is "street vernacular" not warranting a contempt citation for its mere mention in court. Unfortunately, the reported case law contains no satisfactory definition of "chicken----."

But wait ... …

Reviewing The Law Reviews, Texas-Style, Jim Paulsen, James Hambleton

Faculty Scholarship

All is not well in the publish-or-perish world of legal academia. The number of legal periodicals is growing explosively, and is now more than 700. Established law reviews are sneaking more and more pages of text into each volume. There is a growing consensus, however, that genuine legal scholarship is not expanding at a pace sufficient to fill all these blank pages. Seminar speakers advise new law professors that somewhere there is a law review willing to print anything a professor is willing to put on paper; a little browsing will confirm that those lecturers know whereof they speak.

The Commander In Chief And United Nations Charter Article 43: A Case Of Irreconcilable Differences?, James W. Houck

Faculty Scholarship

Part II of this paper provides an overview of the U.N. Charter's framework for collective security, with a particular focus on the Charter's provision for the. creation, command, and control of U.N. military forces. During the Cold War, this framework fell into desuetude, and U.N. forces that participated in enforcement actions, such as Korea and Iraq, as well as peacekeeping operations, were created in ad hoc fashion outside the Charter's framework. Part III examines this development and considers how the conclusion of an Article 43 agreement might alter the President's authority under international law to pursue U.S. interests while participating …

Dna Evidence: Probability, Population Genetics, And The Courts, David H. Kaye

Faculty Scholarship

To help meet the challenge of presenting properly performed DNA tests within the post-Daubert legal framework, this article outlines the statistical procedures that have been employed or proposed to provide judges and juries with quantitative measures of probative value, describes more fully how the courts have dealt with these procedures, and evaluates the opinions and the statistical analyses from the standpoint of the law of evidence.

Specifically, the article outlines the procedure used to declare whether two samples of DNA "match," and how shrinking the size of the "match window," as some defendants have urged, will decrease the risk of …

Civil Forfeiture: A Higher Form Of Commercial Law?, Steven L. Schwarcz, Alan E. Rothman

Faculty Scholarship

In this Article, Messrs. Schwarcz and Rothman analyze the disquieting impact of civil forfeiture law on creditors' rights. The Article begins by describing the historical origins of civil forfeiture and its development into current day law. The Article then explores the tension between forfeiture law and commercial and bankruptcy law by examining the effect of a forfeiture action on unsecured and undersecured creditors. The Article evaluates a recent model for balancing governmental and commercial law interests, and concludes by suggesting reforms to the present civil forfeiture scheme.

The Illegitimacy Of Trademark Incontestability, Kenneth L. Port

Faculty Scholarship

The concept of incontestability in American trademark law has caused great confusion ever since its adoption as part of United States trademark law in 1946. This Article is first a study of the rational basis for incontestability in American trademark law. The role of incontestability in the larger regime of American trademark law is established in order to understand incontestability as it fits within the history of the common law of trademarks. This is fundamental in order to understand the significance of the thesis that incontestability is illegitimate. Next, acquisition of incontestability is presented in order to show how simple …

Gendering And Engendering Process, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Against The Tyranny Of Paraphrase: Talking Back To Texts, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

From A Reporter's Perspective: A Proposed Agenda, Aaron Twerski

Faculty Scholarship

No abstract provided.

Reinventing Rate Regulation, Nick Allard

Faculty Scholarship

No abstract provided.

Thayer Versus Marshall, Gary S. Lawson

Faculty Scholarship

Professor Nagel's intriguing paper1 suggests that James Bradley Thayer's clear error rule of constitutional adjudication 2 is not an effective vehicle for controlling, and indeed may even exacerbate, the tendency toward invective that often characterizes modem court decisions and legal arguments. Professor Nagel is too charitable. To the extent that Thayer's article has had an influence on either the style or substance of modem constitutional law, that influence has been even more pernicious than Professor Nagel lets on. The source of that problem, however, is less the clear error rule itself than the premises that generate and, in Thayer's view, …

The Habeas Hagioscope, Larry Yackle

Faculty Scholarship

If you would understand American law, American politics, and the elusive difference between the two, look no further. Federal habeas corpus for state prisoners opens a window on the workings of our national government, overt and covert. I mean in this Article to describe the scene that is revealed. A rich account of experience in recent years can contribute to a deeper understanding of our government by arranging the players and the set in context and sequence. The record will show a number of things to be true.

Efficiency And Labor Law, Keith N. Hylton

Faculty Scholarship

In this Article, I examine the economic efficiency of labor law. My claim is that much of labor law seems to be efficient-in a sense that will be made precise below.⁹ I approach this issue by examining the process by which labor law develops and some important areas of labor law doctrine. The central question addressed is whether the process by which labor law develops differs substantially from the common law process. I demonstrate that there are differences that have implications for the efficiency of labor law. But the differences do not seem to be so great as to …

Throwing Stones At The Mudbank: The Impact Of Scholarship On Administrative Law, Ronald A. Cass, Jack M. Beermann

Faculty Scholarship

The impact of administrative law scholarship on administrative law seems at first blush both a relatively straightforward issue and one that academicians should be especially eager to engage. But there is reason to doubt both propositions. First, any effort to grapple with this topic compels the conclusion that the issue is by no means straightforward. As Peter Strauss recently observed, the question of the influence of administrative law scholarship necessarily becomes as well the influence of active engagement in the practice of administrative law on scholarship.' Moreover, the questions implicated in this assessment cannot be narrowly compassed. The topic requires …

The Lotus Sūtra And The Rhetoric Of Legitimization In Eleventh-Century Japanese Buddhism, William E. Deal

Faculty Scholarship

Thia paper explores the “rhetoric of legitimation,” that is, the use of religious discourse based on an authoritative text in order to legitimate political and social agendas. Specifically, I will examine two eleventh-century Japanese works, the Hokke genki ÀTàz of the Buddhist monastic ascetics known as hokke hijiri ÀT¸, and the Eiga monogatari ¼P]B of lay Buddhist aristocrats (kizoku {Ÿ).

Constitutional Law--First Amendment--No Constitutional Right To Vote For Donald Duck: The Supreme Court Upholds The Constitutionality Of Write-In Voting Bans In Burdick V. Takushi, Jeanne M. Kaiser

Faculty Scholarship

This Note examines the Supreme Court decision in Burkick v. Takushi in detail and questions the Court's conclusion that the voters' interest in casting write-in votes is so slight that write-in bans are presumptively valid. The Note concludes that the Burdick decision is both inconsistent with the Court's previous ballot access jurisprudence, and restricts the electoral process at a time when voters are clamoring for more diverse choices in the voting booth. Section I of this Note briefly reviews a number of cases that considered the constitutionality of legislation governing candidate access to election ballots. The ballot access cases are …