Digital Commons Network^™

Parents As Fiduciaries, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

Traditionally, the law has deferred to the rights of biological parents in regulating the parent-child relationship. More recently, as the emphasis of legal regulation has shifted to protecting children's interests, critics have targeted the traditional focus on parents' rights as impeding the goal of promoting children's welfare. Some contemporary scholars argue instead for a "child-centered perspective," in contrast to the current regime under which biological parents continue to have important legal interests in their relationship with their children. The underlying assumption of this claim is that the rights of parents and the interests of children often are conflicting, and that …

The Ghost At The Banquet: Slavery, Federalism, And Habeas Corpus For State Prisoners, Marc Arkin

Faculty Scholarship

No abstract provided.

The World Trade Organization's Agreement On Government Procurement: Expanding Disciplines, Declining Membership?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

The Agreement on Government Procurement (GPA) – originally negotiated during the Tokyo Round – was renegotiated for the second time during the Uruguay Round. It is one of the WTO's so-called Plurilateral Agreements, in that its disciplines apply only to those WTO Members that have signed it. In contrast to most of the other Tokyo Round codes – e.g., the agreements on technical barriers to trade (standards), import licensing, customs valuation, subsidies, and antidumping – the GPA could not be 'multilateralized'. With the reintroduction of agriculture and textiles and clothing into the GATT, procurement has therefore become the major 'hole' …

Feminist Lawmaking And Historical Consciousness: Bringing The Past Into The Future, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Margaret Somerville: A Refreshing Challenge, George J. Annas

Faculty Scholarship

Health law is applied law, the entire body of law applied to the promotion of human health and the delivery of medical care. It is accurate, if not flattering, to observe that the vast majority of health law teachers and practitioners are content to take their "applied" discipline as they find it, and spend most of their time and energy describing the intersections of law, medicine, and health care as they occur in the world around us. Margaret Somerville is a refreshing challenge to health law's self-satisfied and confining activities, and it has been invigorating to be her friend and …

We The Exceptional American People, James E. Fleming

Faculty Scholarship

I. INTRODUCTION: "AMERICAN EXCEPTIONALISM" There is an academic movement afoot-one with a long historical pedigree-to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.2 He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).3 Only dualists have the "strength" to declare our American independence from British …

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

Enforcing Coasian Bribes For Non-Price Benefits: A New Role For Restitution, Wendy J. Gordon, Tamar Frankel

Faculty Scholarship

In Boomer v. Muir,¹ a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them.²

In many states, a supplier in the subcontractor's position has among her options the choice of "rescission and restitution."³ That means the supplier may rescind the contract and seek, under the label of "restitution", payment set at market price (or at her cost)⁴ for …

Oxygen Abundances In Low Surface Brightness Disk Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

The oxygen abundances in the H II regions of a sample of low surface brightness (LSB) disk galaxies are presented. In general, LSB galaxies are found to be metal poor (Z < 1/3Z⊙). Indeed, some LSB galaxies rival the lowest abundance extragalactic objects known, and this sample greatly increases the number of very low metallicity systems known. These low metallicities indicate that LSB galaxies evolve slowly, forming relatively few stars over a Hubble time. The low metallicities of LSB galaxies occur even though many are comparable in size and mass to the prominent spirals which define the Hubble sequence. As well as being low in surface brightness, these galaxies tend to be isolated. This suggests that surface mass density and environment are more relevant to galaxy evolution than gross size. Despite the low surface brightness of the disks, massive (M > 60 M⊙) stars are inferred to be present and no abnormality of the IMF is indicated. Many low-excitation H II regions exist at low metallicity in LSB galaxies, and the ionization parameter is not tightly correlated with metallicity. However, there does seem to be a significant envelope of maximum ionization at a given metallicity.

Law, Culture, And Harassment, Anita Bernstein

Faculty Scholarship

No abstract provided.

Choice Of Law: A Guide For Texas Attorneys, James P. George

Faculty Scholarship

This Article is a follow-up to an earlier article, Choice of Law Outline for Texas Courts, 18 Tex. Tech L.Rev. 785 (1987), which attempted to illustrate the proper Texas choice of law analysis under the then-recently-adopted “most significant relationship test.” The prior Article was intended for Texas judges, and considered only what ought to occur in a Texas state or federal court. This successor Article is for Texas practitioners, but goes beyond the Texas courtroom. It focuses on the choice of law process in Texas state and federal courts, but is broad enough to acquaint the reader with choice of …

Heirs Of Leonardo: Cultural Obstacles To Strict Products Liability In Italy, Anita Bernstein, Paul Fanning

Faculty Scholarship

No abstract provided.

You've Got It Coming -- Winning Discovery Through Effective Motions Practice, David J. Stout

Faculty Scholarship

An effective discovery motion begins with the underlying discovery document and a thoughtful plan for discovery.

This article will begin with a brief overview of the more important substantive legal points relevant to discovery. The materials will then address some of the more recurrent problems encountered by counsel during the course of discovery. Finally, the discussion will examine the timing, form and content of discovery motions.

1993 Amendments To The Federal Rules Of Civil Procedure Effective December 1, 1993, Daid J. Stout

Faculty Scholarship

On December I, 1993 Congress allowed an important series of amendments to the Federal Rules of Civil Procedure to pass into law. The amendments, particularly with regard to discovery, are extensive and you should carefully review the changes.

The discussions of the 1993 amendments consist of two articles. This article addresses the 1993 amendments (Rule 26, 30 - 37, and 16) as they impact the discovery process.

Twenty-Five Years After Goldberg V. Kelly: Traveling From The Right Spot On The Wrong Road To The Wrong Place, Randy Lee

Faculty Scholarship

No abstract provided.

Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, And The Aclu, Susan Herman

Faculty Scholarship

No abstract provided.

Recognizing And Enforcing State And Tribal Judgments: A Round Table Discussion Of Law, Policy And Practice, Christine Zuni Cruz, Mario E. Occhialino Jr., Philip Sam Deloria, Richard E. Ranson Honorable, Robert N. Clinton, Robert Laurence, Nell Jessup Newton

Faculty Scholarship

Let me begin with a word of introduction. For a long time, we at the American Indian Law Center have been interested in and concerned about the growth and strengthening of tribal governmental institutions. Tribal sovereignty is often talked about in the abstract, but people are somewhat reluctant to deal with the practical issues that are involved when sovereignty is actually exercised: the give and take that governments do all the time in their relationships with each other. We tried to take the leadership a number of years ago in looking at some of the practical issues involved in the …

American Indian Law And History: Instructional Mirrors, Gloria Valencia-Weber

Faculty Scholarship

This article is an expanison of a presentation delivered on January 8, 1993 at the Association of American Law Schools annual meeting. The author presents her interdisciplinary approach to teaching a course on Native American Rights.

Defining Legal Writing: An Empirical Analysis Of The Legal Memorandum, Frederick M. Hart, Hunter M. Breland

Faculty Scholarship

This report examines legal writing as it is represented in legal memoranda prepared by first-semester law students in twelve different law schools. It is based on the cumulative judgments of the instructors and professors of law in those institutions, humanities specialists at Educational Testing Service, and two legal consultants. A taxonomy of the elements of the legal memorandum was developed from annotations and written and tape-recorded commentaries on 237 legal memoranda written by the law students. Ratings of the overall quality and of the importance of specific elements of the legal memoranda were conducted on multiple occasions by different judges. …

Against Marriage, Steven K. Homer

Faculty Scholarship

What is marriage? In the debate surrounding same-sex marriage, the central term has gone undefined. Using the Hawaii Supreme Court's decision in Baehr v. Lewin as a starting point, this Note argues that marriage lacks legal as well as experiential coherence. A series of legal and social moves intended, on the one hand, to preserve the dominance of heterosexuality over gays and lesbians and, on the other, to allow, heterosexuals to escape the dominance of heterosexuality over themselves, has left little conceptual space for marriage. That is, to speak of "extending marriage" to same-sex couples creates the illusion that marriage …

Haymarket: Whose Name The Few Still Say With Tears, A Dramatization In Eleven Scenes, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Reinventing Competition, Nick Allard

Faculty Scholarship

No abstract provided.

Abolition Of China's Unequal Treaties And The Search For Regional Stability In Asia, 1919-1943, Charlotte Ku

Faculty Scholarship

Article Extract:

On July 1, 1997, China will resume control over Hong Kong - territory ceded to Britain in 1842 following China's defeat in the Opium War. The settlement of the Hong Kong question and the scheduled 1999 reversion of Macao from Portugal to China will effectively remove the last traces of the restrictions and encroachments placed on China by treaty for 150 years following the 1842 Treaty of Nanking.

The "unequal" treaty system began with the trading and residential privileges provided by the Treaty of Nanking. Britain was the premier trading power in China in the nineteenth century, and …

Cartesian Logic And Frontier Politics: French And American Concepts Of Arbitrability, Thomas E. Carbonneau, Francois Janson

Faculty Scholarship

This comparative essay represents an attempt to introduce a measure of counterpoise in a growing and much-heralded development in the world law of arbitration. Recent decisional law in the United States, France, and other countries have challenged the strategic significance of the concept of arbitrability in the legal regulation of arbitration. The essay seeks, first, to clarify the function of arbitrability in the law of arbitration and, second, to argue against its judicial deconstruction in either the international or domestic context. The key objective of the analysis is to demonstrate the vital role of demarcation that arbitrability plays between state …

The Qur’An And The Common Law: Islamic Law Reform And The Theory Of Legal Change (Part 1), Donald L. Horowitz

Faculty Scholarship

Part I of a two part article.

Impeachment And Rehabilitation Under The Maryland Rules Of Evidence: An Attorney's Guide, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Whose International Law?: Sovereignty And Non-State Groups, Benedict Kingsbury

Faculty Scholarship

This is the first of three keynote panels at this 88th Annual Meeting, under the overarching theme of "The Transformation of Sovereignty."

Welcome To The Junta: The Erosion Of Civilian Control Of The U.S. Military, Charles J. Dunlap Jr.

Faculty Scholarship

Colonel Dunlap argues that civilian control of the United States military is eroding as a result of seemingly disparate phenomena. Colonel Dunlap first examines the American tradition of antimilitarism, which he believes no longer effectively restrains the modern armed forces. He then analyzes the effects of the military's elevated public support, the evolving nature of the leadership elite, and the increasing vulnerability of constitutional safeguards to military influence. In an effort to assess the current predicament, Colonel Dunlap introduces the new paradigm of postmodern militarism that challenges traditional notions of civilian control. Noting the potential long-term implications of excessive military …

The Unnatural Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Kenneth L. Port

Faculty Scholarship

This article is a systematic review of proposed section 43(c ). Proposed section 43(c ) would create a federal cause of action for trademark dilution and would grossly expand trademark rights. The article reviews both the practical implications and theoretical underpinnings of the dilution concept. Part II describes the basic origins and history of the dilution debate. Part IV(A) presents the practical problems that proposed section 43(c ) raises. Part IV(B) critiques some of the more popular theoretical justifications that are typically used to support granting intellectual property rights and concludes that no satisfactory theoretical justification exists to warrant an …

Law And Language(S): Image, Integration And Innovation, Margaret E. Montoya

Faculty Scholarship

Examining the complex relationship between law and language enhances our understanding of the marginalization and subordination of linguistic Outsiders. This nexus between law and language has many manifestations. In this essay I discuss the biases about language that constrain traditional legal discourse while I explore strategies for its reframing by using the languages of Outsiders. Succinctly stated, this essay posits that traditional language norms create images or maintain stereotypes that stultify public discourse as well as impose cultural integration and linguistic assimilation with destructive consequences. The essay proposes that linguistic norms in law schools can be refashioned through pedagogical innovations …