Digital Commons Network^™

Rational Decisions And Regulation Of Union Entry, Keith N. Hylton, Maria O'Brien

Faculty Scholarship

More than a decade after the publication of Law and Reality, the debate continues over the proper scope of election campaign regulation under the National Labor Relations Act (the "Act"). The issue has been whether employer efforts to dissuade employees from electing a union to represent them in collective bargaining actually influence the outcomes of elections. Several academic lawyers and social scientists have criticized one aspect or another of the Getman, Goldberg and Herman results (hereinafter the "Getman Study"), suggesting that many employer tactics have no effect on election outcomes, and that such tactics should not be regulated by …

Predicting The Future Of Privacy In Pregnancy: How Medical Technology Affects The Legal Rights Of Pregnant Women, George J. Annas

Faculty Scholarship

The bodies of pregnant women are the battleground on which the campaign to define the right of privacy is fought. The ultimate outcome will likely be shaped at least as much by new medical technologies as by politics or moral persuasion. This is because medical technologies do much more than change what we can do: they can radically alter the way we think about ourselves. Technologies have the power to change "not only the relation of man to nature but of man to man."1 More than that, they can alter our very concept of what it means to be human, …

Atari Games V. Nintendo: Does A Closed System Violate The Antitrust Laws, Glynn S. Lunney Jr

Faculty Scholarship

As I rushed through the malls this past Christmas, I noticed a new store, one that would not have been possible just a few years ago. It was a Nintendo boutique. I was permitted only to gaze longingly at the games and accessories on display before being pulled away to shop for the things I would actually buy, but I thought it would be fun to return someday and purchase the system and perhaps a few cartridges and accessones.

So, I must admit that my perspective on the Atari v. Nintendo suits will not be that of an unaffected observer, …

Amplifying Bose Corp. V. Consumers Union: The Proper Scope Of De Novo Appellate Review In Public Person Defamation Cases De Novo Appellate Review In Public Person Defamation Cases, Tigran W. Eldred

Faculty Scholarship

In 1984, the Supreme Court in Bose Corp. v. Consumers Union of United States, Inc.¹⁰ explicitly affirmed its longstanding practice¹¹ of independently reviewing a trial court's actual malice determination. At issue was whether an appellate court was bound under Federal Rule of Civil Procedure 52(a)¹² to defer to a trial court's finding of actual malice. The Court concluded that Rule 52(a) was inapplicable to the actual malice decision and that "[a]ppellate judges ... must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity."¹³ The Court, in accord with New York …

Divorce Reform And Gender Justice, Jana B. Singer

Faculty Scholarship

The modern shift from fault-based to no-fault divorce has disappointed those who expected the no-fault system to eliminate economic inequality between divorced women and men. The fact that women and their dependent children invariably experience economic hardship after a divorce has caused Lenore Weitzman and other commentators to romanticize the "good old days" of fault-based divorce. Professor Singer attacks the logic of this nostalgia by demonstrating that women were 'not[' better off under the fault-based system. She then proposes an investment partnership model of post-divorce allocation which would insure a fair result for both spouses.

Aids And Government: A Plan Of Action, Taunya L. Banks

Faculty Scholarship

No abstract provided.

History And Executive Removal Power: Morrison V. Olson And Separation Of Powers, John L. Gedid

Faculty Scholarship

No abstract provided.

Beyond Parity: Section 1983 And The State Courts, Susan Herman

Faculty Scholarship

No abstract provided.

Feeding The Permanently Unconscious And Terminally Ill Or Dying Is Not Always Compassion, Phebe Saunders Haugen

Faculty Scholarship

A surrogate decision maker may conclude that efforts to mechanically provide liquid nourishment would cause considerable suffering in return for little gain. But such a decision is unquestionably one that can produce great conflict for families and for medical caregivers. Assessment must be made of each patient's situation and of the benefits and burdens that will result if tube feeding is withheld or withdrawn. It may well be, however, that in some cases, the most humane and compassionate treatment for a patient is the withdrawal of all technological interventions, including those that supply nourishment.

A Crazy System: Mental Health Care Delivery In America, Steven R. Smith

Faculty Scholarship

The thesis of the Article is that there has been, and is, a large unmet need for mental health services in America, and that the mental health care delivery system has been so poorly put together that it is incapable of meeting a major portion of the need for services.

Wisconsin Sentence Modification: A View From The Trial Court, Kate Kruse, Kim E. Patterson

Faculty Scholarship

In Wisconsin, trial courts have discretion to modify a defendant's criminal sentence if the defendant introduces a "new factor." Published Wisconsin case law gives little guidance on what constitutes a new factor. The Wisconsin Supreme Court has declined to find a new factor present in every case it has published since defining "new factor" in 1978. Because of ambiguous and conflicting rulings, the standards for both prongs of the new factor definition remain unclear. This Comment attempts to shed light on the new factor requirement for sentence modification by examining Wisconsin trial court decisions on a limited sample of sentence …

Wanted: An Ethos Of Personal Responsibility—Why Codes Of Ethics And Schools Of Law Don't Make For Ethical Lawyers, Daniel S. Kleinberger

Faculty Scholarship

This article: (1) argues that neither codes of professional ethics nor traditional modes of law school teaching do much to produce ethical lawyers; (2) asserts that ethics codes and the presuppositions of the adversary system work to alienate lawyers from a sense of individual responsibility; (3) critiques the conceptual connection between the adversary system and codes of lawyer ethics; (4) critiques the conventional approach to teaching legal ethics in law schools; (5) invokes the approach to ethical analysis championed by the German sociologist and social theorist Max Weber; and (6) explains how that approach, coupled with traditional tools of legal …

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

Faculty Scholarship

No abstract provided.

Bias Crimes: Unconscious Racism In The Prosecution Of Racially Motivated Violence, Tanya K. Hernandez

Faculty Scholarship

Within the past four years, a perceived surge of "bias crimes" has seized the nation's attention. Bias crimes, physical acts of violence used as an outlet for prejudiced hostilities, are usually street crimes spontaneously committed by casual clusters of "normal people on the street" with very little advanced planning. This Note focuses on the physical injuries to persons that result from bias crimes. Such physical injuries represent cog- nizable harms that can be redressed through criminal statutes.'

Book Review - A Guide To Legal Research In Virginia (Edited By John D. Eure), Steven D. Hinckley

Faculty Scholarship

Review of A Guide to Legal Research in Virginia, edited by John D. Eure. Charlottesville, VA: Committee on Continuing Legal Education, Virginia Law Foundation, 1989.

Drug Legalization: The Importance Of Asking The Right Question Symposium On Drug Decriminalization, Mark A.R. Kleinman, Aaron J. Saiger

Faculty Scholarship

As a policy analysis, this article's central argument is that that the costs imposed by markets in licit psychoactives are significantly greater than those imposed by drug prohibition.

Appellate Reversal For Insufficient Evidence In Criminal Cases: The Interaction Of The Proof And The Jury Charge, Malinda L. Seymore, Mark Thielman

Faculty Scholarship

Garrett's disturbing outcome is the most egregious in a series of decisions promulgated by the Texas Court of Criminal Appeals during the past decade. The result is the product of a sufficiency of evidence analysis in which appellate courts compare the evidence presented to the jury charge alone. Such a sufficiency review exceeds the constitutional safeguards announced by the United States Supreme Court. While a state may provide greater rights than those protected by the federal constitution, doing so in this situation represents poor policy and ill-conceived law. This article will explore various methods for analyzing sufficiency of evidence and …

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 …

Qualified Immunity In Section 1983 Cases: The Unanswered Questions, Kit Kinports

Faculty Scholarship

Part I of this Article describes the general policies underlying qualified immunity and the Court's decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald's impact on the substantive content of the qualified immunity defense: Is immunity available to the defendant who actually knows that her conduct is infringing the plaintiff's constitutional rights, even if the law governing those rights is not yet clearly established? And should a court take into account the nature of the defendant's governmental responsibilities and other circumstances surrounding her conduct in determining whether the right she …

Monopoly Sports Leagues, Stephen F. Ross

Faculty Scholarship

This Article argues that the government should break up both Major League Baseball and the NFL to provide for competing economic entities in each sport. Part I details the harm monopoly sports leagues cause in several different markets and explains why a competitive league structure can correct such harms. Part II discusses why regulatory solutions are poor substitutes for competition as a means of redressing these harms. Part III explains why neither baseball nor football is a "natural monopoly" and argues that no persuasive evidence suggests that rival leagues cannot exist in those sports. Part IV examines how the antitrust …

Reaganist Realism Comes To Detriot, Stephen F. Ross

Faculty Scholarship

Part I of this article discusses Detroit Newspapers and explains how in deferring to the Attorney General's interpretation of the Newspaper Preservation Act, Judge Silberman disregarded every applicable technique of statutory interpretation typically used to resolve the issue. Indeed, each of these techniques suggests that Attorney General Meese's interpretation of the Act was incorrect. This part of the article also demonstrates why deference to Meese was particularly inappropriate in light of the generally accepted justifications for judicial deference to administrative interpretations of statutes.

Part II explains that Detroit Newspapers is one of several opinions by conservative Reagan judicial appointees that …

Reflections On Holding And Dictum, Kent Greenawalt

Faculty Scholarship

The aim of these reflections, which adopt the perspectives of ordinary judges and lawyers, is to try to help clarify what is uncontroversial about the distinction between holding and dictum, to explain what is troublesome about it, to provide – in fairly sketchy form – a way of understanding the authority of various legal formulations that do not fit indisputably or wholly comfortably in the category of holding or that of dictum, and to suggest a conceptual vocabulary for expressing the practical realities I consider.

In the autumn of 1986, I taught a course in Legal Method for beginning students …

Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne

Faculty Scholarship

This paper examines the growing movement away from the functional nature of federalism contained within the Constitution toward a federalist system that gives extensive discretion to Congress and is only limited by political checks. This political system of federalism has limited the role of the Court in national criminal law because of the deference the Court is expected to give Congress.

A Theory Of Political Control And Agency Discretion, Randall L. Calvert, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

A major issue in the study of American politics is the extent to which electoral discipline also constrains bureaucrats. In practice, executive agencies operate with considerable independence from elected officials. However,the entire process of policy execution is a game among legislators.the chief executive. and bureaucratic agents. It includes the initial delegation of authority, the choice of policy alternatives,and opportunities for oversight and control. A simple model of this process demonstrates an important distinction between bureaucratic authority and bureaucratic discretion. Indeed.in its simplest form, the model predicts a world in which bureaucrats are the sole active participants in policymaking, but in …

Structure And Process, Politics And Policy: Administrative Arrangements And The Political Control Of Agencies, Mathew D. Mccubbins, Roger D. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

The Rationality Of The Common Law, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Environmental Quality: Three Ways To Decide How Much To Spend, Marcia R. Gelpe

Faculty Scholarship

Federal and state laws limiting environmental emissions reflect three approaches to deciding how much money to spend on improving environmental quality. The balancing approach estimates the benefits of limiting emissions and the costs of meeting various limits, then sets limits at levels where benefits justify costs. The cost ignoring approach sets emissions limits at levels necessary to prevent environmental harm, without considering the costs of meeting those limits. Technology-based standards limit emissions to levels attainable using the best pollution control technology, as long as no significant environmental effects are known to occur at those levels. In this article, the author …

The Popular Image Of The American Lawyer: Some Thoughts On Its Eighteenth And Nineteenth Century Intellectual Bases, James W. Gordon

Faculty Scholarship

This essay explores the ambiguous position lawyers occupy in the popular mind in America by identifying some of the ideas which contributed to the schizophrenic popular attitude toward the legal profession in the period between the American Revolution and the Civil War. Many of the stock anti-lawyer themes and many of the intellectual sources of the profession's strength are clearly visible by the end of this period. The Author explores this problem, first by relating it to recent scholarship in American history describing the struggle between republicanism and liberalism at the time of the Founding. The way the profession was …

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.