Digital Commons Network^™

Love Makes A Family--Nothing More, Nothing Less: How The Judicial System Has Refused To Protect Nonlegal Parents In Alternative Families, Barbara Cox

Faculty Scholarship

Part I of this article discusses the legal system's recognition of parental rights and enumerates the possible constitutional, statutory, and equitable theories available for protecting the parental rights of nonlegal parents. Part II considers the cases that have rejected the attempts by members of alternative families to use these theories to obtain this protection. Part III discusses the barriers to political power that will make it extremely difficult and time-consuming to achieve legislative change in these areas, and argues that the courts should use the means available to them currently to protect these nonlegal parents and their children while the …

Good Intentions Gone Awry: The Impact Of New York's Equitable Distribution Law On Divorce Outcomes, Marsha Garrison

Faculty Scholarship

No abstract provided.

Title Vii Compensation Issues Affecting Bilingual Hispanic Employees, David Allen Larson

Faculty Scholarship

This article deals the workers who are bilingual and their accompanying compensation on the job. The article covers compensation, classification, Bilingual Hispanic employees required to speak both Spanish and English on the job may, in certain circumstances, be entitled to greater compensation under Title VII of the Civil Rights Act of 1964 than employees who do the same job exclusively in English. It is unlikely, however, that a court will conclude that bilingual Hispanic employees required to speak both Spanish and English are for that reason alone entitled to increased compensation. Yet bilingual Hispanic employees required to use both languages …

The Death Penalty And Gender Discrimination, Elizabeth Rapaport

Faculty Scholarship

Despite the paucity of research on the death penalty and gender discrimination, it is widely supposed that women murderers are chivalrously spared the death sentence. This supposition is fueled by the relatively small number of women who are condemned. This article argues that women are represented on contemporary U.S. death rows in numbers commensurate with the infrequency of female commission of those crimes which our society labels sufficiently reprehensible to merit capital punishment. Additionally, preliminary investigation suggests that death-sentenced women are more likely than death-sentenced men to have killed intimates, although the explanation for this disparity is not yet at …

Jim Crow, Indian Style: The Disenfranchisement Of Native Americans, Jeanette Wolfley

Faculty Scholarship

This article examines the ongoing struggle of Indians to gain the right to vote and, thus, have a meaningful opportunity to fully participate in the political process. It will discuss historical and modern disenfranchisement and the continued progress toward the goal of political equality envisioned by the fifteenth amendment.

Pyrrhic Victories And Glorious Defeats: Why Defendants Are Winning And Plaintiffs Are Losing The Struggle Over Actual Malice And Fictionalized Quotation, Richard A. Gonzales

Faculty Scholarship

This article reviews Masson v. New Yorker Magazine, a case of fabricated quotations. The article looks first at the legal background and Supreme Court's development of the actual malice standard. An analysis of the problem through journalistic ethics and investigation of the difficulties confronting libel plaintiffs will follow. Finally, the comment explores the misquotation problem from both a legal and a journalistic perspective.

Medicaid Reform Through Setting Health Care Priorities, Robert L. Schwartz

Faculty Scholarship

The face of American health care has changed since the creation of the two largest government funded health programs, Medicare and Medicaid. Whatever positive cultural benefits those programs have provided, they have carried with them one overwhelming defect: a language with obscure and untreatable words and phrases which has added to the mystery and impenetrability of the underlying substantive law. This article discusses Oregon’s proposal for prioritization, reviews legal arguments, a policy argument against the proposal, and finally concludes that any priority list that generalizes from condition-treatment pairs necessarily overgeneralizes, that the range of cost-utility ratios for any condition-treatment pair …

Reflections On A Scholarly Agenda For The Beginning Law Professor, Sherri L. Burr

Faculty Scholarship

This article looks at developing a scholarly agenda from the perspective of a recently admitted member of the academy. The topic is divided into three parts: developing a scholarly agenda; choosing what to write from the agenda; and deciding where to publish the article that you write.

Simple Justice: Humanitarian Law As A Defense To Deportation, Jennifer Moore

Faculty Scholarship

Each year, thousands of persons fleeing situations of military conflict in their home countries are denied refuge in the United States. These denials result in part from an asylum adjudication process that requires applicants to show that they are persecuted on an individualized basis, rather than that they fear generalized conditions of violence. Jennifer Moore explores the development of the humanitarian law defense to deportation, which seeks to compel immigration courts to recognize and apply international humanitarian law. Part I describes the evolution of the humanitarian law argument in immigration courts. Part II considers the relationship between humanitarian law and …

Gender, Legal Education And Legal Careers, Antoinette M. Sedillo Lopez, Lee Teitelbaum, Jeffrey Jenkins

Faculty Scholarship

Much of the literature on the careers of women generally-as well as the smaller literature on the experiences of women in legal education and legal practice-supposes that women will follow different paths and have different experiences than men, and that this is and will be true because they are women. Some commentators on the relation between gender and the experience of legal professionals believe that women have distinctive modes of cognition or value orientations that shape their experience in the workplace, while others believe that social and cultural assumptions (held not only by employers but often by women themselves) are …

Anonymous Bank Accounts: Narco-Dollars, Fiscal Fraud, And Lawyers, William W. Park

Faculty Scholarship

This Article will focus on how lawyers in countries with a tradition of bank secrecy have played a part in maintaining their clients’ anonymity vis-a-vis bankers. For comparative purposes ` the Article will also comment on the banker’s interest in knowing his or her customer’s identity in a tax context, particularly when the customer claims the benefits of income tax treaties. My modest purpose is to help us all to be more aware of the divergent ethical implications of bank account anonymity

Two Sides Of The Same Coin: The Potential Normative Power Of American Cities And Indian Tribes, Kevin J. Worthen

Faculty Scholarship

People do not normally associate cities with Indian reservations. The mental images typically conjured by each term are radically different. Perhaps for that reason, few think of city governments and tribal governments in similar terms.

However, the two forms of government - cities and Indian reservations - have many things in common. Both are excluded from the federal constitutional framework. Both are subject to the plenary power of one of the constitutionally recognized governments - cities to the state government, tribes to the federal government. Both are the most intimate form of government with which most of their residents are …

Sword Or Shield: The Past And Future Impact Of Western Legal Thought On American Indian Sovereignty (Reviewing Robert A. Williams Jr., The American Indian In Western Legal Thought (1990)), Kevin J. Worthen

Faculty Scholarship

No abstract provided.

When The Borrower And The Banker Are At Odds: Arbitration And International Finance, William W. Park

Faculty Scholarship

Lenders and borrowers traditionally have gone before judges rather than arbitrators to resolve controversies arising out of international loan agreements. Arbitration has been relatively rare, even ill-favored, in financial dispute resolution. Except with respect to performance guarantees and securities, arbitrators seldom decide controversies arising out of financial transactions. The disfavored status of arbitration in banking contrasts sharply with arbitration's position as the preferred adjudicatory mechanism in trans-border commercial relationships.

Mengele's Birthmark: The Nuremberg Code In United States Courts, George J. Annas

Faculty Scholarship

Experimentation on human beings is so difficult to justify that the attempt is seldom even made. Usually its justification is simply assumed, and vague notions of progress or national emergency are suggested as sufficient rationales. The United States, a society dedicated to both progress and human rights, has been profoundly ambivalent about human experimentation. On the one hand, we have consistently argued in our ethical codes that the rights and welfare of research subjects must be protected; on the other hand, we have consistently used perceived emergencies, both national and medical, as an excuse to jettison individual rights and welfare …

The Regulation Of Foreign Banks In Canada: Milelli Marks A Decade Of Ambiguity, Gillian Lester

Faculty Scholarship

The recent decision of the Ontario Court of Appeal in R. v. Milelli culminates a decade of ambiguity in the laws regulating foreign banks in Canada. The case deals with the interpretation of s. 302(1)(a) of the Bank Act, which prohibits foreign banks from undertaking "any banking business" in Canada. The provisions are cryptic and contain no definition of the term "banking business". This has left foreign banks at the caprice of the statute. They are uncertain about the extent to which they are permitted either to deal with Canadian customers directly, or to participate in co-operative transactions (such as …

Evidence Scholarship, Old And New, Roger C. Park

Faculty Scholarship

No abstract provided.

Self-Defense As A Justification For Punishment, George P. Fletcher

Faculty Scholarship

There are few legal ideas as basic as the principle of legitimate self-defense. Every individual, it is said, has the right to defend his or her person, property or living space against wrongful aggression and, if necessary, to kill the aggressor. This principle is so deeply ingrained in our legal thinking that it is difficult to imagine a legal system that did not acknowledge it. The concept of having rights would be virtually toothless unless we could use force to vindicate our rights against aggression.

The notion of having rights is less well-accepted in Jewish law than are the ideas …

Authors And Exploitations In International Private Law: The French Supreme Court And The Huston Film Colorization Controversy, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

On May 28, 1991, France's Supreme Court, the Cour de cassation, rendered its long-awaited decision in Huston v. la Cinq, a controversy that opposed the heirs of film director John Huston against the French television station Channel 5 and its licensor, Turner Entertainment. Defendants sought to broadcast a colorized version of Huston's black and white film classic, The Asphalt jungle. Plaintiffs, John Huston's children and Ben Maddow, who collaborated with Huston on the film's screenplay, asserted that broadcast of a colorized version violated Huston's and Maddow's moral right of integrity in the motion picture. The central question before the Cour …

The Meaning Of Dissent, Lee C. Bollinger

Faculty Scholarship

There is, and has always been, an abiding tension in first amendment theory. At times, freedom of speech is conceived as having a very practical purpose – as implementing a system designed for yielding truth, or good public policy. Thus, Zechariah Chafee wrote that the first amendment protects the "social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way," and Alexander Meiklejohn spoke frequently of the first amendment as a practical plan for a self-governing society, engendering "wise decisions." This vision of …

Shareholder Initiative: A Social Choice And Game Theoretic Approach To Corporate Law, Jeffrey N. Gordon

Faculty Scholarship

When it comes to specific business matters, it seems that an objecting shareholder can do no more than offer a "precatory" resolution that provides shareholder advice on the issue. Adoption of such a resolution obviously sends a strong signal to management, as do informal contacts by important shareholders, that a management seeking to avoid a control contest may be well-advised to heed. Nevertheless, management can ignore such expressions of shareholder. preference and, indeed, can pursue policies and extraordinary transactions that it knows shareholders would reject. Thus for the large public corporation the pattern of delegation gives management virtually unbounded decisionmaking …

Constitutional Control Of Military Actions: A Comparative Dimension, Lori Fisler Damrosch

Faculty Scholarship

The purpose of this essay is to examine some aspects of the legal framework for military activity in the internal law of some of the world's most powerful states. The international community has a major stake in the constitutional evolution of member states as regards the authority to decide to go to war. That stake – or those interests, since they are plural (and hold some possibility for contradiction) – can be identified as follows:

(1) to strengthen trends toward constitutionalism generally, by which I mean the concept of governance based on law;
(2) to strengthen trends toward civilian control …

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, …

Constitutional Politics In Poland: A Report On The Constitutional Committee Of The Polish Parliament, Andrzej Rapaczynski

Faculty Scholarship

This Article is neither a comprehensive historical account of the work of the Constitutional Committee of the Polish Parliament nor a theoretical synthesis of recent constitutional developments in Poland. Rather, it is a mixture of theory, anecdote, and personal reminiscence that I feel at this point most capable of providing. As will be seen, the work on the new Polish constitution has in some ways been overtaken by events that unfortunately have always lurked in the background of the drafters' work and influenced their decisions. In fact, it is not clear that Poland will enact anything resembling the draft prepared …

Hare And Hounds: The Fugitive Defendant's Constitutional Right To Be Pursued, Bruce A. Green

Faculty Scholarship

No abstract provided.

Why Creditors File So Few Involuntary Petitions And Why The Number Is Not Too Small, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Devolution Or Disunion: The Constitution After Meech Lake, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Gender Wars: Selfless Women In The Republic Of Choice, Joan C. Williams

Faculty Scholarship

No abstract provided.

"Normative Constitutional Fact-Finding": Exploring The Empirical Component Of Constitutional Interpretation, David L. Faigman

Faculty Scholarship

No abstract provided.

Professional Decisions And Ethical Values In Medical And Law Students, Robert L. Schwartz, Agnes G. Rezler, Pamela Lambert, S. Scott Obenshain, Joan Mciver Gibson, David A. Bennahum

Faculty Scholarship

The purpose of this project is to evaluate and compare the values used by medical and law students when dealing with ethical dilemmas in the professional practice of law and medicine. It is assumed that conflict between doctors and lawyers often arises out of the different values that members of each profession apply to similar dilemmas.