Digital Commons Network^™

Evaluating Ethics Committees: A View From The Outside, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Texas Bucks The Trend - No Cause Of Action For Lost Chance Of Survival In The Medical Malpractice Context: Kramer V. Lewisville Memorial Hospital, Wayne Barnes

Faculty Scholarship

Jennie Kramer visited her gynecologist in August 1985 complaining of unusual discharges and intermittent bleeding. At that time, her doctor informed her that she tested negative for cancer. Her irregular bleeding continued, but on two subsequent visits to another doctor in November and December, Ms. Kramer was again informed that she did not have cancer. During February of 1986, after continued bleeding, Ms. Kramer detected a hard spot in her vagina. She returned to the second doctor a third time, at which time she was diagnosed with cancer. In spite of subsequent exploratory surgery and chemotherapy, Ms. Kramer died on …

Age-Based Incentives, Coercion, And The Prospective Waiver Of Adea Rights: The Failure Of The Older Workers' Benefit Protection Act, Michael C. Harper

Faculty Scholarship

The theses of this Article shall be developed in the following manner. Part I shall explain how conditional age-based exit incentive windows can be used by employers to achieve indirectly what the ADEA clearly prohibits when accomplished directly: the removal from employment of a group of employees chosen, at least in part, on the basis of their age. This Part further explains how this removal is accomplished by effectively inducing employees to waive prospectively their future ADEA protection. Part II analyzes the treatment of age-based conditional exit incentives by the courts before the passage of the OWBPA, stressing that the …

Preempting Justice Through Binding Arbitration Of Future Disputes: Mere Adhesion Contracts Or A Trap For The Unwary Consumer, Michael Z. Green

Faculty Scholarship

When individual consumers with little or no bargaining power have not consented to particular contractual terms, the use of the courts and judicial interpretations may be the only way to promote justice and allow consumers to protect themselves. Unfortunately, the trend, as established in recent United States Supreme Court decisions, is to apply the deferential standards of enforcement from commercial transactions to situations involving adhesion contracts between an individual consumer and a business entity where equal bargaining power is clearly lacking.

Perhaps the most pervasive example of this trend has been the Supreme Court's zealous enforcement of arbitration clauses under …

Cipollone V. Liggitt Group, Inc., Federal Preemption And The Preservation Of State Common Law Claims (Product Liability), David J. Stout

Faculty Scholarship

In virtually every case involving a defective product you can anticipate the manufacturer or supplier seeking refuge behind the tired refrain "the Government let me do it." At its most basic the doctrine of preemption limits the operation of state law in areas where Congress has intended that federal law be exclusive or controlling.

It is to be hoped that the wave of federal preemption has crested and that the federal courts will, under the specific guidance of Cipollone, be less inclined to look beyond the expressed purpose of Congress to find state common law tort claims preempted.

The Government Contractor Defense, David J. Stout

Faculty Scholarship

Litigation involving defective products has increasingly become a pre-trial battle to overcome a series of technical defenses that have become a stock part of the manufacturer's defense.

Defendants invariably raise the government contractor defense where the defective product resulted from some governmental involvement in the manufacturing process, no matter how peripheral or superfluous was the government's involvement in that process.

The defense by its nature only applies to design defect cases. A defect in the manufacturing process is not protected by the defense.

Financial Exploitation Of The Elderly, Diane E. Hoffmann, Roger Wolf

Faculty Scholarship

No abstract provided.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Temperature Dependent Coordination Effects In Base-Off Adenosyl And Methylcobalamin By X-Ray Edge Spectroscopy, Mark R. Chance

Faculty Scholarship

Examination of the role of base-off cobalamin species (where the 5,6-dimethylbenzimidazole ligand coordinated to cobalt is detached by protonation of the imidazole nitrogen) in differentiation between homolytic and heterolytic cobalt-carbon bond cleavage mechanisms is a primary step in better understanding B12-dependent enzyme catalysis. X-ray absorption edge spectroscopy provides the first direct structural evidence of five-coordination in base-off adenosyl- and base-off methylcobalamin complexes at room temperature. Integration of 1s-3d pre-edge transitions of the base-off species reveals the dependence of coordination number on temperature. Gradual increases in 1s-3d transition intensities, as the temperature is increased from 180 K to 298 K, reflect …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Faculty Scholarship

The first part of this Comment will present the historical and theological views towards suicide. This background material will be helpful in understanding present-day society's response to the assisted suicide debate by tracing many of the condemnations back through common law development. The second portion of this Comment will focus on the current status of the assisted suicide debate. Although most courts have passed on the issue" and most legislatures do not have laws addressing assisted suicide, there is a great deal of activity shaping the legal future of this topic. This section emphasizes the importance of key nonlegal players …

The Impact Of The European Community On Labor Law: Some American Comparisons, Marley S. Weiss

Faculty Scholarship

No abstract provided.

Reproduction And Parenting, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

The Other Ninety-Six Percent, John C. Dernbach

Faculty Scholarship

No abstract provided.

The Global Environment Facility: Financing The Treaty Obligations Of Developing Nations, John C. Dernbach

Faculty Scholarship

No abstract provided.

R. V. Parks: Automatism And Murder, Laura Spitz, Isabel Grant

Faculty Scholarship

In R. v. Parks' the Supreme Court of Canada had the opportunity to clarify the test for distinguishing between insane and non-insane automatism and to locate sleep-walking, or somnambulism, within this dichotomy. Its judgments accomplished neither purpose satisfactorily and thus the case is more striking for its unusual facts than for its advancement of the law. The question before the Supreme Court of Canada was simple: was Parks entitled to an absolute acquittal on the basis that his acts were involuntary, or was the involuntariness caused by a disease of the mind, thus leaving him only with the defence of …

Charity Begins At Home: Alternatives In Nonprofit Regulation, Jon M. Garon

Faculty Scholarship

No abstract provided.

The History Of The Patent Harmonization Treaty: Economic Self-Interest As An Influence, R. Carl Moy

Faculty Scholarship

How shall the United States decide whether to adopt the Patent Harmonization Treaty? What questions shall we ask? Whose answers shall we trust? What sources of information can provide us with the background needed for these inquiries? This article offers a framework in which to ask, and begin to answer, these questions. It focuses on the international community's past efforts to harmonize the law of patents. It asserts not only that history provides context, but also, that the same history yields lessons directly applicable to many of the treaty's basic issues. Section I discusses the immediate history of WIPO's efforts …

Building And Maintaining A Statewide Mediation Program: A View From The Field, Sharon Press

Faculty Scholarship

Written in 1992, this article attempts to provide guidance to states seeking to improve the judicial system through increased use of alternative dispute resolution (“ADR”) mechanisms. The format most often selected is the establishment of statewide mediation offices. Part I of this article identifies the issues that should be addressed by any group wishing to establish a statewide court-connected mediation program. Part II presents an analysis of Florida’s experience in establishing a statewide court mediation program as an example of how these issues were resolved in practice by a state that has implemented a court-connected mediation program. This article concludes …

Creating A Classroom Component For Field Placement Programs: Enhancing Clinical Goals With Feminish Pedagogy, Linda H. Morton

Faculty Scholarship

This article supports the use of feminist pedagogy to provide the ideal environment for engaging clinic students in self-learning. The author describes the complementary relationship between clinic goals and feminist pedagogy, illustrated through her use of a student-facilitated and non-hierarchical teaching model in her externship classes. The model used provides a unique and valuable educational environment for the training of prospective professionals.

The Anatomy Of Emotional Distress Claims In Minnesota, Michael K. Steenson

Faculty Scholarship

This Article examines the right to recover damages for emotional distress in Minnesota, with emphasis on claims for negligent and intentional infliction of emotional distress. The recovery of damages for emotional distress is subject to varying and perhaps seemingly inconsistent standards. After a brief history of emotional distress law, the Article will discuss claims for emotional distress based on negligence, intentional torts, and statutory violations. These areas are examined in detail to determine the standards for the recovery of emotional harm in Minnesota and to evaluate whether the standards are applied consistently. The Article also examines the right to recover …

Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski

Faculty Scholarship

Three weeks before he died in May 1873, the frail and ailing Salmon P. Chase joined three of his brethren in dissent in one of the most important cases ever decided by the United States Supreme Court, the Slaughter-House Cases.1 This decision was a watershed in United States constitutional history for several reasons. Doctrinally, it represented a rejection of the virtually unanimous decisions of the lower federal courts upholding the constitutionality of revolutionary federal civil rights laws enacted in the aftermath of the Civil War. Institutionally, it was an example of extraordinary judicial activism in overriding the legislative will of …

Grappling With A Grotian Moment: Sovereignty And The Quest For A Normative World Order, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

Employee Rights In The European Community: A Panorama From The 1974 Social Action Program To The Social Charter Of 1989 , Roger J. Goebel

Faculty Scholarship

Certainly, in the eyes of the drafters of the EEC Treaty, social progress was inseparably linked with economic progress, and both were intimately related to the goal of a "union among the peoples of Europe." The Court of Justice has also recognized the importance of social policy, stating that "the Community ...is not merely an economic union," but rather has a "double aim, which is at once economic and social ..." In view of the capital importance thus accorded to the social aspect of the European Community, it is surprising that the Community's achievements in the social sphere, both through …

Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer

Faculty Scholarship

The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …

Lawyers At The Prison Gates: Organizational Structure And Corrections Advocacy, Susan Sturm

Faculty Scholarship

The rise of the public interest law movement ushered in an era of intense debate over the best way to provide legal representation to those unable to afford private counsel. This debate has involved two related dimensions of public interest representation. First, advocates and observers of public interest practice disagree over the proper role of lawyers acting on behalf of poor and underrepresented clients. They offer competing visions of representation spanning a continuum, from providing equal access to the courts for as many poor people as possible, to attacking the causes and effects of poverty and powerlessness.

The second dimension …

He's Gotta Have It, Carol Sanger

Faculty Scholarship

In 1929, James Thurber and E.B. White observed that

[d]uring the past year, two factors in our civilization have been greatly overemphasized. One is aviation. The other is sex.... In the case of aviation, persons interested in the sport saw that the problem was to simplify it and make it seem safe.... With sex, the opposite was true.... The problem in this case was to make sex seem more complex and dangerous. This task was taken up by sociologists, analysts, gynecologists, psychologists, and authors.... They joined forces and made the whole matter of sex complicated beyond [our wildest dreams].... Sex, …

From The Constitutionality Of Juvenile Curfew Ordinances To A Children's Agenda For The 1990s: Is It Really A Simple Matter Of Supporting Family Values And Recognizing Fundamental Rights?, Michael K. Jordan

Faculty Scholarship

The analysis of the constitutionality of curfew ordinances provides a window into a process that obfuscates rather than clarifies the nature of the constitutional problem. By defining the issue as one governed by rights, we limit our ability to comprehend the larger issue of how the Supreme Court has defined the relationship between minors, the family and society. The issue of the rights of minors as they relate to curfew ordinances offers a measure of solace by reducing the number of disturbing questions which concern cultural change and public policy decisions relating to the family. An understanding of this process …

The Law's Response To Reproductive Genetic Testing: Questioning Assumptions About Choice, Causation And Control, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Twelve Letters From Arthur L. Corbin To Robert Braucher Annotated, Joseph Perillo

Faculty Scholarship

No abstract provided.

Antitrust Liability For Collective Speech: Medical Society Practice Standards, Mark R. Patterson

Faculty Scholarship

No abstract provided.