Digital Commons Network^™

Punishment: The Civil Perspective Of Punitive Damages, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Exchange, Contract And Law In The Stone Age, Joseph Perillo

Faculty Scholarship

No abstract provided.

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.

Privacy And The Regulation Of The New Reproductive Technologies: A Decision-Making Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

This article maps out the territory that must be explored in this very complex area and analyzes the implications of governmental regulation of the new reproductive technology. It suggests that the central issue for analysis is the extent to which authority to make decisions concerning reproductive potential should be allocated to individuals rather than to the government. The article describes approaches to allocating decision-making authority with respect to procreative issues. The first is a rights-based approach which emphasizes individual autonomy; this approach will not permit governmental regulation which interferes with personal autonomy in decision making, at least without good reason. …

Who Cares?: The Evolution Of The Legal Duty To Provide Emergency Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Bracton, The Year Books, And The "Transformation Of Elementary Legal Ideas" In The Early Common Law, David J. Seipp

Faculty Scholarship

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer's specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional …

Legal Policy Conflicts In International Banking, William W. Park

Faculty Scholarship

The world debt crisis might never have occupied the front pages of our newspapers during much of the past decade if more attention had been paid to the advice old Polonius gave to young Laertes. More than one Secretary of the Treasury has tried to control a multibillion dollar problem of money addiction, whose resolution sometimes seems to lie in the realm of financial eschatology.

National Law And Commercial Justice: Safeguarding Procedural Integrity In International Arbitration, William W. Park

Faculty Scholarship

The law chosen to govern the merits of an international contract dispute does not always lead to results hat satisfy an arbitrator's personal sense of what is right. The arbitrator therefore may be tempted to resolve the dispute according to his own notion of justice. Seduced away from the rules of the otherwise applicable law, the arbitrator may take on unauthorized powers of amiable composition. While most international arbitrators are conscientious in respecting the bounds of their mission, some have been known to boast of their skill in finding ways to bypass the established rules of the party-chosen law. …

A House Divided Against Itself: A Comment On "Mastery, Slavery, And Emancipation", Kendall Thomas

Faculty Scholarship

Hegel argues in the preface to the Philosophy of Right that "every individual is a child of his time; so philosophy too is its own time apprehended in thoughts." "It is just as absurd," he maintains, "to fancy [the German word is einbilden: imagine, presume] that a philosophy can transcend its contemporary world as it is to fancy that an individual can overleap his own age, jump over Rhodes." This is a hard saying. It suggests that " '[t]here is not one of our ideas or one of our reflexions which does not carry a date.' " The fact that …

The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger

Faculty Scholarship

The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …

Facing Up: A Reply, Joseph Raz

Faculty Scholarship

We are all familiar with the peculiar feeling of coming across one's past objectified, as when one overhears others telling how they perceived a certain event in which one played the hero's role. Reading the contributions to this issue was a bit like that. In particular, it made me realise how I have abused the tolerant paper by writing all too much, while leaving so many hostages to fortune, so many loose ends, and expressing so many half-baked ideas. It is also embarrassing because it is like a summons to the confessional, to repent my sins of omission and commission, …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Faculty Scholarship

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?

Seasoned To The Use, Carol Sanger

Faculty Scholarship

Two recent novels, Presumed Innocent and The Good Mother, have more in common than critical success, longevity on best-seller lists and big-name movie adaptations. Both books are about law: Presumed Innocent is a tale of murder in the big city; The Good Mother is the story of a custody fight over a little girl. Central characters in both books are lawyers. Turow is a lawyer, and Miller thanks lawyers. While the books could be classified in other ways – Presumed Innocent as mystery, The Good Mother as women's fiction – each meets a suggested genre specification of a legal novel: …

Clean Water Act Citizens Suits After Gwaltney: Applying Mootness Principles In Private Enforcement Actions, Reed D. Benson

Faculty Scholarship

The Supreme Court recently held that a citizen plaintiff must make a good-faith allegation of an ongoing violation in order to bring an enforcement action under the Clean Water Act. The decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., will prevent citizens from bringing suit for the assessment of civil penalties solely for past violations of the Clean Water Act.

A Cure For Scholarship Schizophrenia: A Manifesto For Sane Productivity And Productive Sanity, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Transnational Takeover Talk: Regulations Relating To Tender Offers And Insider Trading In The United States, The United Kingdom, Germany, And Australia, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Whose Advantage After All: A Comment On The Comparison Of Civil Justice Systems, Herbert L. Bernstein

Faculty Scholarship

No abstract provided.

Drug Product Liability And Health Care Delivery Systems, William M. Sage

Faculty Scholarship

This note will use the principles of law and economics to examine the interaction of market structures and product liability rules in a world of imperfect information. The goals of the analysis are to create incentives for optimal care by producers and consumers, induce the socially appropriate amount of consumption of each product (often referred to as the "activity level"), and minimize the costs of bearing the risk of injury. The note will conclude that the existence of health maintenance organizations ("HMOs") and similar prepaid providers with superior information capacity and total patient care responsibility may create a context in …

Government Official Torts And The Takings Clause: Federalism And State Sovereign Immunity, Jack M. Beermann

Faculty Scholarship

In this article, I argue that state sovereign and official immunities, insofar as they bar recovery when private parties would be liable for similar conduct, are unconstitutional under the takings clause of the fifth amendment, as applied to the states under the fourteenth.²² A state's refusal to compensate plaintiffs for the tortious damage or destruction of property should be redressed by the federal courts in civil actions brought under § 1983.

Section I of this article provides background through a discussion of the Supreme Court's treatment of the problem of torts committed by government officials, primarily in procedural due …

A Dissent On Joint Custody, Jana B. Singer, William L. Reynolds

Faculty Scholarship

No abstract provided.

Aids And The Right To Health Care, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

When Must A Hospital Challenge The Medicare Reimbursement Policy?, Robert L. Schwartz

Faculty Scholarship

The Issue for the Court is whether the Medicare statute permits hospitals that do not formally request Medicare reimbursement for particular items in the cost reports filed with their fiscal intermediaries (who audit the reports) to seek reimbursement for those items when they appeal the fiscal intermediary's decision to the appropriate administrative board or court.

When Can The Government Issue A Retroactive Medicare Reimbursement Rule? A Preview Of Bowen V. Georgetown University Hospital, Robert L. Schwartz

Faculty Scholarship

The only issue before the Court is whether the Secretary of Health and Human Services can issue a regulation with entirely retroactive effect governing Medicare reimbursement for healthcare providers. The Court must decide whether such a retroactive rule is permitted by the Administrative Procedures Act (the "APA"), which defines a rule as "an agency statement of either general or particular applicability and future effect," or by the Medicare statute, which authorizes the Secretary to issue regulations to provide for the reimbursement of the "reasonable costs" of hospitals providing Medicare services.

The American Jury On Trial: Psychological Perspectives (Book Review), Leo M. Romero

Faculty Scholarship

Book Review of S. Kassin & L. Wrightsman, The American Jury on Trial: Psychological Perspectives (1988)

If Your Client Is Mentally Retarded, James W. Ellis, Ruth A. Luckasson

Faculty Scholarship

Introduction to defending clients who hae cognitive disabilites.

Chronicling A Movement For Civil Rights, James W. Ellis

Faculty Scholarship

Review of the book, The Mentally Disabled and the Law, by Jan Brakel Samuel, John Pary, and Barbara A. Weiner.

Judge Ogden Hoffman And The Northern District Court Of California, Christian G. Fritz

Faculty Scholarship

A transcribed speech on Ogden Hoffman and the early history of the United States District Court for the Northern District of California. The author touches upon three areas of law important to Hoffman's court: admiralty, land, and Chinese immigration. Then assess the meaning of Hoffman's judgeship in contrast to that of United States Supreme Court Associate Justice Stephen J. Field.

Original Understanding And The Constitution, Michael E. Tigar

Faculty Scholarship

No abstract provided.

An Identified Histaminergic Neuron Can Modulate The Outputs Of Buccal-Cerebral Interneurons In Aplysia Via Presynaptic Inhibition, Hillel J. Chiel

Faculty Scholarship

We have identified 2 buccal-cerebral interneurons (BCIs), B17 and B18, that appear to be involved in the coordination of feeding behavior in Aplysia. The BCIs have their cell bodies in the buccal ganglion, but send axons to the cerebral ganglion via the cerebral-buccal connectives. The BCIs appear to make monosynaptic connections with neurons in the cerebral ganglion that modulate extrinsic muscles involved in feeding behavior. B17 and B18 are activated antiphasically during a motor program induced by stimulating the esophageal nerve and appear to 'read out' different phases of the buccal program to different cells in the cerebral ganglion. B17 …