Digital Commons Network^™

The Use Of Anti-Suit Injunctions In International Litigation, George A. Bermann

Faculty Scholarship

Of the various forms of provisional relief in the context of inter-national litigation, none has sparked as much interest and controversy as the international anti-suit injunction. In many ways the international anti-suit injunction, an instrument by which a court of one jurisdiction seeks to restrain the conduct of litigation in another jurisdiction, resembles more conventional forms of international provisional relief such as the foreign attachment or preliminary injunction. Like them, the anti-suit injunction affords courts an important opportunity to affect the course and significance of litigation abroad. However, such intervention strongly implies – and often actually creates – jurisdictional conflict …

Determinants Of Judicial Waiver Decisions For Violent Juvenile Offenders, Jeffrey Fagan, Elizabeth Piper Deschens

Faculty Scholarship

The selection of jurisdiction for adjudicating juvenile crime today is one of the most controversial debates in crime control policy, reflecting differences in assumptions about the causes of crime and philosophies of jurisprudence and punishment. For adolescent offenders, especially violent youth whose behaviors may pose particular social danger, critics view the traditional goals of the juvenile court and the "best interests of the child" standard as being at odds with public concerns for retribution and incapacitation of criminals. The choice between jurisdictions is a choice between the nominally rehabilitative dispositions of the juvenile court and the explicitly punitive dispositions of …

Sunstein's New Canons: Choosing The Fictions Of Statutory Interpretation Exchange, Eben Moglen, Richard J. Pierce Jr.

Faculty Scholarship

In Interpreting Statutes in the Regulatory State, Cass Sunstein grapples with two of the most difficult and important questions concerning governance of the modern administrative state. First, what institution should have the dominant role in interpreting ambiguous agency-administered statutes? And second, how should the institution perform that task? Sunstein rejects the Supreme Court's answer to the first question, characterizing its assignment of a dominant interpretive role to agencies in Chevron U.S.A., Inc. v Natural Resources Defense Council as "the fox guarding the hen house." Sunstein prefers to charge judges with the responsibility of resolving most interpretive disputes. In answer to …

Violence As Regulation And Social Control In The Distribution Of Crack, Jeffrey A. Fagan, Ko-Lin Chin

Faculty Scholarship

This chapter examines violence and aggression among crack and other illicit drug sellers in New York City. Few studies have addressed the origins of drug selling, specifically whether such drug violence reflects generalized violence or violent behaviors contingent on drug selling. Aggression in crack selling appears to be commonplace and severe (Goldstein et al., unpublished manuscript; Goldstein 1989; Johnson, et al. 1990; New York Times 1989b) and is the focus of this study. Aggression evident in nondrug criminality is compared for crack sellers and other seller types. If violence in drug selling is a distinct behavior that reflects the contingencies …

What's Next?: The Future Of Rico, G. Robert Blakey, John C. Coffee Jr., Paul E. Coffey, L. Gordon Crovitz

Faculty Scholarship

Opening Statement of Mr. Crovitz: Coming to the Notre Dame Law School to debate Robert Blakey on the Racketeer Influenced and Corrupt Organizations law makes me feel like Daniel approaching the lion's den. I'm tempted to offer my own prayer, "Yea, though I walk through the valley of the shadow of death, I will fear no RICO."

A Tale Of Two Copyrights: Literary Property In Revolutionary France And America, Jane C. Ginsburg

Faculty Scholarship

The French and U.S. copyright systems are well known as opposites. The product of the French Revolution, French copyright law is said to enshrine the author: exclusive rights flow from one's (preferred) status as a creator. For example, a leading French copyright scholar states that one of the "fundamental ideas" of the revolutionary copyright laws is the principle that "an exclusive right is conferred on authors because their property is the most justified since it flows from their intellectual creation." By contrast, the U.S. Constitution's copyright clause, echoing the English Statute of Anne, makes the public's interest equal, if not …

The Locus Of Sovereignty Judicial Review, Legislative Supremacy, And Federalism In The Constitutional Traditions Of Canada And The United States, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski

Faculty Scholarship

A century ago Oliver Wendell Holmes, Jr., examined the history of negligence in search of a general theory of tort. He concluded that from the earliest times in England, the basis of tort liability was fault, or the failure to exercise due care. Liability for an injury to another arose whenever the defendant failed "to use such care as a prudent man would use under the circumstances.” A decade ago Morton J. Horwitz reexamined the history of negligence for the same purpose and concluded that negligence was not originally understood as carelessness or fault. Rather, negligence meant "neglect or failure …

The Anti-Federalist Ninth Amendment And Its Implications For State Constitutional Law, Calvin R. Massey

Faculty Scholarship

No abstract provided.

The Cost Of Rule 11, William W. Schwarzer, Jerold S. Solovy

Faculty Scholarship

No abstract provided.

Socialist And Non-Socialist Approaches To Land Law: Continuity And Change In Somalia And Other African States, Ugo Mattei

Faculty Scholarship

No abstract provided.

"I Didn't Tell Them Anything About You": Implied Assertions As Hearsay Under The Federal Rules Of Evidence, Roger C. Park

Faculty Scholarship

No abstract provided.

Conflicts Of Law (1989), Sharon N. Freytag, Don D. Bush, James Paul George

Faculty Scholarship

Conflicts of law occur when foreign elements appear in a lawsuit. Nonresident litigants, incidents in sister states or foreign countries, and lawsuits from other jurisdictions represent foreign elements that may create problems in judicial jurisdiction, choice of law, or recognition of foreign judgments, respectively. This Article reviews Texas conflicts of law during the Survey period from late 1987 through 1988. The survey includes cases from Texas state and federal courts. Excluded are cases involving federal state conflicts, criminal law, intrastate matters such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent …

The Biotechnology Revolution And Its Regulatory Evolution, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Choosing Judges The Democratic Way, Larry Yackle

Faculty Scholarship

A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of …

Equal Protection And A Deaf Person's Right To Serve As A Juror, Randy Lee

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.

The Athletic Scholarship And The College National Letter Of Intent: A Contract By Any Other Name, Michael J. Cozzillio

Faculty Scholarship

No abstract provided.

Writing The Statement Of The Case: The "Bear" Necessities, Randy Lee

Faculty Scholarship

No abstract provided.

Law And Community On The Mexican California Frontier: Anglo-American Expatriates And The Clash Of Legal Traditions, 1821-1846 By David J. Langum, G. Emlen Hall

Faculty Scholarship

Law and Community on the Mexican California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846. By David J. Langum. (Norman: University of Oklahoma Press, 1987. xii + 308 pp. Illustrations, tables, appendixes, notes, bibliography, index. $30.00.)

Setting Limits On Autonomy: Saving Money In An Aging Society, Robert L. Schwartz

Faculty Scholarship

In Setting Limits Dr. Daniel Callahan poses a solution: the termination of some kinds of treatment for the very elderly. His solution undercuts autonomy of the individual. This Article describes the values served by autonomy and explains why autonomy is so basic to making health care decisions and why its importance is especially great in the United States. Of course, autonomy is not absolute. This Article will define those classes of cases in which autonomy can be trumped by other interests. The Article will next determine whether the class of cases defined by Dr. Callahan fits within that definition. Finally, …

Warrior Bards, Kevin Mccarthy, Michael E. Tigar

Faculty Scholarship

No abstract provided.

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.

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 …

Enforcement Of Arbitration Agreements In Securities Fraud Disputes, Robert A. Lusardi

Faculty Scholarship

In this Article, the Author discusses the Supreme Court's increased willingness in recent years to rely on the arbitral process for the resolution of securities disputes, and its willingness to enforce pre-dispute arbitration agreements under the Arbitration Act.

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 …

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.

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 …

There Is No Archbishop Of Science - A Comment On Elliot's Toward Incentive-Based Procedure: Three Approaches For Regulating Scientific Evidence, Robert L. Schwartz

Faculty Scholarship

As is usual when Professor Elliott writes about turning retrospective judge-oriented procedural rules into prospective attorney-oriented procedural incentives, his proposal for dealing with scientific testimony not accepted within the scientific community is both interesting and provocative. It also serves as an apology for those judges who are so in awe of science that they believe that only they or their peers in the scientific establishment-and not the common folk selected for jury service-are likely to understand the complex truths that science yields. Professor Elliott starts with the assumption that there is a need for some kind of judicial intervention to …