Digital Commons Network^™

What Disabilities Are Protected Under The Rehabilitation Act Of 1973?, David Larson

Faculty Scholarship

It can be difficult for an employer or a recipient of federal funds to determine exactly what types of disabilities are protected by the Rehabilitation Act of 1973. Relevant literature has not given a great deal of attention to this specific question. Recent cases, however, provide additional information that can assist in determining which disabilities are protected. The question of what is protected handicap differs from the question of whether a handicapped person is also “qualified.” This article focuses on the threshold question of determining whether a handicap actually exists, concentrating on the Rehabilitation Act of 1973. The definition of …

Alternative Families: Obtaining Traditional Family Benefits Through Litigation, Legislation And Collective Bargaining, Barbara Cox

Faculty Scholarship

This article will first discuss the constitutional and equitable basis for extending rights to alternative families. Next, it will discuss each major protection and benefit granted to traditional families and then examine the litigation, legislation, and collective bargaining agreements obtaining or attempting to obtain the same benefit for alternative families. This article will end by arguing that equity and justice require an extension of these benefits to alternative families.

Disabled Newborns And The Federal Child Abuse Amendments: Tenuous Protection, Steven R. Smith

Faculty Scholarship

This Article first explores the scope of the problem of withholding lifesaving treatment from seriously impaired infants. Next, the Article examines the interests involved in decisions to withhold treatment and the rationales for them. It contends that there are limitations on parental child-rearing rights and suggests standards to define when treatment may be withheld. The Article then reviews recent efforts to protect disabled newborns and points out a shift in the focus of these efforts toward a reliance on child abuse and neglect laws. Next, the Article surveys the development of federal and state child abuse and neglect statutes. The …

The Consequences Of The Insanity Defense: Proposals To Reform Post-Acquittal Commitment Laws, James W. Ellis

Faculty Scholarship

There are sound public policy reasons for considering a reform of state laws concerning commitment of insanity acquittees. A balanced system of special commitment can protect the public safety and, at the same time, give acquittees a fair hearing on their current mental condition and continuing need for confinement. Special commitment can also insulate general commitment laws from political pressures that can arise from the prospect of the possible release of notorious insanity acquittees. Several of the recently proposed model reforms, however, have features that commend them to the attention of state legislators. The Oregon model of using a Psychiatric …

An Offer She Can’T Refuse: When Fundamental Rights And Conditions On Government Benefits Collide, Marie Failinger

Faculty Scholarship

This article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework …

The Interpretation Of Means Expressions During Prosecution, R. Carl Moy

Faculty Scholarship

This article briefly explains how the scope of a claim including a means expression is determined both under the PTO view and a strict application of the statutory language. The lack of consensus and current state of the law in the area are illustrated through an analysis of several recent decisions of the Federal Circuit. The policies underlying the PTO and statutory methods of interpreting means expressions during prosecution are examined in an effort to demonstrate that the statutory method more effectively furthers the policies underlying the patent system.

The "Official" Texas Court Reports: The Rest Of The Story, James Hambleton, Jim Paulsen

Faculty Scholarship

In the January 1986 issue of the Texas Bar Journal, this column recounted the checkered tale of the official Texas court reports, from the birth of the Texas Reports in the first State Legislature, to their mysterious death at the hands of the Legislature in 1963, and their equally mysterious resurrection by the most recent session, in the form of the Texas Government Code. The authors have since been deluged with reader mail on the subject, and have decided to share excerpts from both letters.

New Rules: A Pocket Introduction, James Hambleton, Jim Paulsen

Faculty Scholarship

All in all, though, the new Rules of Appellate Procedure, effective Sept. 1, 1986, should be welcomed by bench and bar alike. The cooperation of this state's two high courts has produced a coordinated system of rules that should reduce confusion among attorneys and court personnel. In the process, the rules formerly applicable only to civil appeals have been reorganized, and are now presented in a format that more logically follows the flow of an appeal.

The Pitfalls Of Empirical Research: Studying Faculty Publication Studies, David H. Kaye, Ira Mark Ellman

Faculty Scholarship

This article critiques empirical studies by attorneys in the hopes that they will be held to the minimal standards of research competence that are to be found in other academic fields which rely on empirical studies. Because law-trained scholars are notoriously weak at empirical research, this article identifies some of the methodological considerations that should inform empirical research. These fall into four broad categories: (1) problems of conceptualization, (2) problems of measurement, (3) problems of data presentation and analysis, and (4) problems of inference. This article examines all of these considerations in the context of an empirical survey done by …

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

Faculty Scholarship

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …

Fishing And Selling, Victor P. Goldberg

Faculty Scholarship

Consumers are a lot like fish, out there waiting to be hooked. Like most images, this one is a caricature of reality. The choice and search effort of consumers is suppressed in order to explore the implications of selling activity by manufacturers and retailers. In particular, the fishing analogy suggests that there is a tendency toward excessive selling activity if sellers do not take into account the effects of their activity on the costs of their rivals. However, sellers, like fishermen, have an incentive to arrange their affairs to mitigate the dissipation of rents. This argument is developed in Section …

Lawmaking As An Expression Of Self, George P. Fletcher

Faculty Scholarship

In this lecture I should like to encourage an attitude toward legal phenomena that stresses both tradition and change as an expression of meaning, particularly as an expression of national legal identity. I will illustrate this thesis with some specific examples of substantive rules in American and in German law. In the latter part of the lecture, I shall turn to the choice of language as a parallel expression of identity within a particular legal system.

Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The Struggle For Judicial Independence In Antebellum North Carolina: The Story Of Two Judges, Walter F. Pratt Jr.

Faculty Scholarship

No abstract provided.

Strategies For Ameliorating The Immigration Consequences Of Criminal Convictions: A Guide For Defense Attorneys, Maryellen Fullerton, Noah Kinigstein

Faculty Scholarship

No abstract provided.

From Confidential Supervision To Market Discipline: The Role Of Disclosure In The Regulation Of Commercial Banks, Alfred Dennis Mathewson

Faculty Scholarship

This Article examines traditional regulatory discipline, the development of a legal basis for confidential supervision, the role of the SEC and federal securities laws in the development of a public disclosure system for banks and bank holding companies, and the utilization of public disclosure to achieve market discipline as a major tool in preventing bank failure and maintaining the stability of the banking system. The scope of this Article is limited to the regulation of commercial banks, whether state or federally chartered, by the following federal bank regulatory agencies: the Office of the Comptroller of the Currency (Comptroller), the Federal …

Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski

Faculty Scholarship

The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant, in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as …

Activity Of An Identified Histaminergic Neuron, And Its Possible Role In Arousal Of Feeding Behavior In Semi-Intact Aplysia, Hillel J. Chiel

Faculty Scholarship

The possible functions of histaminergic neuron C2 were studied in an isolated head preparation from which it was possible to obtain intracellular recordings while the buccal mass exhibited feeding-like responses. Application of food to the lips of the isolated head preparation elicited rhythmic buccal movements that appeared to be ingestion responses, since they moved seaweed into the buccal cavity and towards the esophagus, and their frequency and regularity was similar to the ingestion responses studied in a group of intact animals. The ingestion responses of the buccal mass consisted of 2 main phases of movement of the radula from a …

Static And Dynamic Properties Of Polystyrene In Good Solvents: Ethylbenzene And Tetrahydrofuran, K. Venkataswamy, Alexander M. Jamieson, Rolfe G. Petschek

Faculty Scholarship

We report static and dynamic light scattering studies of polystyrenes of narrow molecular weight distribution in ethylbenzene (EtPh) and tetrahydrofuran (THF) as solvents. These experiments generate values for z-average radius of gyration, (Rg)₂, weight-average second osmotic virial coefficient, A₂, z-average translational diffusion coefficients, (Dt)z, and hence the diffusion virial coefficients, kD, and the z-average of the inverse frictional radius, 〈Rf-1〉z. The results show that while for a specific molecular weight the 〈Rg〉z values in THF are similar to our experimental values in ethylbenzene and to literature values in benzene or toluene, the A2 values, as well as hydrodynamic radii, are …

To Whom Does The Government Lawyer Owe The Duty Of Loyalty When Clients Are In Conflict, William Josephson, Russell G. Pearce

Faculty Scholarship

This Article focuses on the continuing debate on the ethical obligations of government lawyers: do government lawyers represent the people or do they represent a client? The Article explains that the dominant conception that government lawyers represent the people actually results in government lawyers representing themselves. After examining alternative approaches to determining the identity of the government lawyer’s client, the Article concludes that only one approach is consistent with both the ethical rules and our republican system of government. The government lawyer’s client properly understood is an elected official or, in certain cases, an agency head with legal authority independent …

The Role Of Strategic Reasoning In Constitutional Interpretation: In Defense Of The Pathological Perspective Comments, Vincent A. Blasi

Faculty Scholarship

I am indebted to Professor Christie, not only for noticing my work but also for challenging it in so forthright a manner. He has identified a feature of my thesis that deserves to be a focal point for additional debate. Any reader of my original article who was undecided whether to agree with it ought to be aided considerably in the task of critical evaluation by the exchange Professor Christie has initiated. I know my own understanding of the premises and implications of my thesis has been enhanced by the experience of working out a response to his challenge.

The …

A Relational Theory Of Secured Financing, Robert E. Scott

Faculty Scholarship

Despite advances in finance theory, secured debt remains a puzzle. As a consequence, the justification for the current legal regulation of secured financing is similarly unclear. What purposes, whether benign or malignant, does security serve? And what explains the peculiar system of priorities established by Article 9 of the Uniform Commercial Code? These are particularly urgent questions for students of commercial law because legally created priorities among creditors are an apparent aberration. In most legal regimes, equal treatment of those similarly situated is an important normative goal. Indeed, much of federal bankruptcy law seems to reflect a conception of business …

Through Bankruptcy With The Creditors' Bargain Heuristic, Robert E. Scott

Faculty Scholarship

It is a commonplace, but nonetheless true: the study of bankruptcy has attained a new respectability in American law schools. After years of modest enrollments and few genuine scholarly contributions, bankruptcy courses are now fully subscribed and many young academics are turning their attention to the technical complexities and conceptual underpinnings of modern bankruptcy law. A number of factors contribute to this new-found glamour. Most obviously, the enactment of the new Bankruptcy Code has fueled scholarly interest in reporting its modifications and changes and in exploring its theoretical unity. Simultaneously, there has been increasing resort to the bankruptcy process to …

State Law Wrongs, State Law Remedies, And The Fourteenth Amendment, Henry Paul Monaghan

Faculty Scholarship

Parratt v. Taylor is among the most puzzling Supreme Court decisions of the last decade, and the lower federal courts have been thrown into considerable confusion in their efforts to implement it. In large part, this confusion stems from the fact that Parratt decided two independent points: first, the negligent loss or destruction of property by state officials could constitute a "deprivation" thereof for purposes of the due process clause of the fourteenth amendment; and second, the existence of an adequate state remedy to redress the wrong meant that the deprivation was not "without due process of law." In this …

Rethinking The Theory Of Legal Rights, Jules S. Coleman, Jody S. Kraus

Faculty Scholarship

In the economic approach to law, legal rights are designed, in part, to overcome the conditions under which markets fail. In correcting for market failure, economic analysis endorses two rules for assigning legal rights. The first specifies the allocation of rights under conditions of rational cooperation, full information and zero transaction costs. Provided that exchange is available and that obstacles to exercising it are insignificant, rational cooperators will negotiate around inefficiencies. Under these conditions, legal rights are not assigned in order to establish optimal levels of resource deployment directly; rather, they establish well-defined entitlements or negotiation points which create a …

With Liberty And Justice For All: An Essay On Agent Orange And Choice Of Law, Aaron Twerski

Faculty Scholarship

No abstract provided.

Is Proof Of Statistical Significance Relevant?, David H. Kaye

Faculty Scholarship

The classic treatises on evidence note that the court or jury must weigh the evidence, and upon weighing it, determine whether the plaintiff or the defendant prevails. Some courts, however, have indicated that statistical evidence should not be admitted unless it is subjected to a procedure known as 'hypothesis testing.' There are many rather mechanical procedures for performing these tests and a number of judges, attorneys, and law professors have suggested that hypothesis testing provides an objective, scientific means of settling disputed questions on which statistical evidence is brought to bear. Yet, many circumstances arise in which courts or administrators …

On The 'Usefulness' Of Suspect Classifications, James W. Ellis

Faculty Scholarship

Reviewing discrimination in legal decisions.

Crime Talk, Rights Talk, And Double-Talk: Thoughts On Reading Encyclopedia Of Crime And Justice (Review Essay), Michael E. Tigar

Faculty Scholarship

No abstract provided.

Private Adjudicators And The Public Interest: The Expanding Scope Of International Arbitration, William W. Park

Faculty Scholarship

When Solomon arbitrated a child custody dispute, the baby almost perished.' Today's arbitrator probably could not propose such a drastic award. Yet courts may refuse to compel arbitration of some disputes for fear that societal interests may suffer a fate similar to that which would have befallen the baby under Solomon's initial judgment. The parties to the dispute are not free to compromise rights other than their own.