Digital Commons Network^™

Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan

Faculty Scholarship

Following hard on the heels of two unanimous decisions sustaining the authority of state courts to enforce federal law, two more unanimous rulings at the end of the 1989 Supreme Court Term strongly emphasized their duty to do so. McKesson Corporation v. Division of Alcoholic Beverages & Tobacco, held that the states must provide meaningful postpayment remedies for parties forced to pay state taxes that had been extracted contrary to the commerce clause, and Howlett v. Rose affirmed the existence of a nearly inescapable duty in the state courts to entertain section 1983 actions. Additionally, three days after Howlett …

Privatization In Eastern Europe: Impractical, But Not Impossible, Andrzej Rapaczynski

Faculty Scholarship

The most important thing that must be understood by anyone thinking about Eastern European privatization is that the word "privatization," although correct, is somewhat misleading. It is misleading because it brings to mind the operations performed in many other countries where state-owned companies have been sold to private individuals. It is very important to understand that the significance of privatization and the practicality of privatization in Eastern Europe are quite different. The most important thing is that the main task of privatization is not to transfer ownership from one party to another-like that successfully done in England-but rather to create …

Bondholder Coercion: The Problem Of Constrained Choice In Debt Tender Offers And Recapitalizations, John C. Coffee Jr., William A. Klein

Faculty Scholarship

The past decade saw the flourishing of risky, high-yield corporate debt, often called "junk" bonds. Too many companies took on too much debt, and the chickens are now coming home to roost as these bonds have begun to default with increasing frequency.The magnitude of the problem is potentially enormous; by one estimate, $318 billion of debt has either defaulted already or trades at yields indicating the market's skepticism that it will be repaid on maturity.

Facing the prospect of default, corporate issuers are seeking to restructure or recapitalize their financial structures at a correspondingly increased pace. The market force driving …

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.

Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Faculty Scholarship

Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling …

Home Rule, Majority Rule, And Dillon's Rule, Richard Briffault

Faculty Scholarship

Clayton Gillette's In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law? is an ambitious attempt to breathe new life into an old local government law chestnut through the analytical tools of modern political economy. Gillette asserts that because the Rule permits state judges to invalidate local legislation that results from "one-sided lobbying," Dillon's Rule increases the allocational efficiency of local decision making and reduces the deadweight losses attendant on special interest pursuit of rent-seeking ordinances. According to Gillette, Dillon's Rule checks the danger of special interest abuse of local politics by constraining local …

A Process Of Denial: Bork And Post-Modern Conservatism, James Boyle

Faculty Scholarship

No abstract provided.

Prospective Self-Denial: Can Consumers Contract Today To Accept Health Care Rationing Tomorrow?, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

The Boarder Baby And Foster Care Crises In New York City: Problems Of Policy And Poverty, James S. Bowen, Madeline Morris, Jose M. Rivera

Faculty Scholarship

No abstract provided.

Gestational Surrogacy And The Health Care Provider: Put Part Of The "Ivf Genie" Back Into The Bottle, Karen H. Rothenberg

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.

Public Remedies For Private Wrongs: Rethinking The Title Vii Back Pay Remedy, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Territorial Governments And The Limits Of Formalism, Gary S. Lawson

Faculty Scholarship

For much of this nation's history, the governance of American territories, such as the island of Guam, was one of the most significant and oft-litigated problems of American constitutional law. In modern times, however, issues of territorial governance have been reduced to the status of constitutional arcana. Professor Lawson maintains that this frequently neglected problem of territorial governance is an ideal context in which to conduct the resurgent modern debate concerning separation of powers theory. Accordingly, Professor Lawson undertakes a formalist analysis of the principal institutions of American territorial governance, finding all of them incompatible with a formalist understanding of …

The Law And Economics Of Organ Procurement, Keith N. Hylton

Faculty Scholarship

This paper presents an economic analysis of the organ procurement system in the U.S. and examines proposals to alleviate the shortage of transplantable organs. The paper's principal conclusions are: (1) Although non-market solutions deserve the highest priority, demand increases fueled by improvements in transplant technology will probably make some market-based solution necessary in the future. (2) Quality deterioration and coercion will not necessarily be worrisome problems under a market-based procurement system.

Real Property Survey, Ronald B. Brown

Faculty Scholarship

No abstract provided.

New Fda Drug Approval Policies And Hiv Vaccine Development, Wendy K. Mariner

Faculty Scholarship

Conducted a study of Food and Drug Administration (FDA) law and policy including interviews with FDA officials in the Center of Biologics Evaluation and Research and the Office of the General Counsel. Suggests that the new FDA drug review policies do not fit vaccines. Instead, the nature of vaccines, and HIV vaccines in particular, argues for adherence to a more rigorous form of review. (JLN)

Women And Aids - Racism, Sexism, And Classism, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Industrial Waste: Saving The Worst For Last?, John C. Dernbach

Faculty Scholarship

No abstract provided.

Refocusing Abortion Jurisprudence To Include The Woman: A Response To Bopp And Coleson And Webster V. Reproductive Health Services, Barbara Cox

Faculty Scholarship

This Article seeks to refocus the abortion debate to include the impact of unwanted pregnancy on women. The first two sections of this Article challenge Bopp and Coleson's argument that a woman's right to choose an abortion enjoys no constitutional basis and that Roe should be reversed. A woman's constitutionally protected liberty and privacy rights are directly implicated by the state imposed pregnancy that results from restricted access to abortion. The third section disputes Bopp and Coleson's claim that the abortion right has become virtually inviolate, not subject to the state restrictions that the Court has allowed for other aspects …

A Judicial Postscript To The Church-State Debates Of 1989: How Porous The Wall, How Civil The State?, William W. Van Alstyne

Faculty Scholarship

This work is a continuation of the debate regarding the Establishment Clause. The focus lies with Justice O’Connor’s concurrence in County of Allegheny v. ACLU and how this opinion harkens back to a concept shared by Jefferson and Madison, that the establishment clause is designed to prevent government favoritism.

It Does The Crime But Not The Time: Corporate Criminal Liability In Federal Law, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Voices Heard In Jury Argument: Litigation And The Law School Curriculum, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Organizing Themes Of Environmental Law, Marcia R. Gelpe

Faculty Scholarship

This article is designed to assist students and lawyers in their work in the field of Environmental Law; specifically, in the area of preventing and mitigating the effects of pollution. The article begins with the origins of modern environmental law. It briefly summarizes the reasons we have environmental problems and describes the inadequacies of the common law responses. This is key to understanding modern environmental statutes, which are designed to remedy the shortcomings of the common law. The main part of the article sets out the various approaches to remedying those shortcomings and gives examples of environmental statutes which take …

Pregnancy, Drugs, And The Perils Of Prosecution, Wendy K. Mariner, Leonard H. Glantz, George J. Annas

Faculty Scholarship

In the war on drugs an offensive has been launched against pregnant women who use drugs. Over the past four years, prosecuting attorneys have been indicting women who use drugs while pregnant. In South Carolina alone, eighteen women who allegedly took drugs during pregnancy were indicted last summer for criminal neglect of a child or distribution of drugs to a minor.' In the only successful prosecution so far, Jennifer Johnson was convicted in Florida for delivering illegal drugs to a minor via the umbilical cord in the moment after her child was born and before the cord was clamped.^{2 …}

A Critical Assessment Of Reid's Work For Hire Framework And Its Potential Impact On The Marketplace For Scholarly Works, Sherri L. Burr

Faculty Scholarship

This article focuses on the marketplace for copyrighted works produced by academics. Academics are hired by universities with the understanding that in addition to teaching, they will conduct research, analyze their research, and publish the results of their analysis. The custom has been at many universities that academics retain the copyright in their scholarly publications and in their lectures when they are reduced to tangible form. This article examines Community for Creative Non-Violence v. James Earl Reid's construction of the "work made for hire" definition in the 1976 Copyright Act and assesses its potential impact on academics. Part I provides …

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 …

Municipal Ethical Standards: The Need For A New Approach Report, John D. Feerick, Carol Schachner, Mark Davies, Sherrie Mcnulty, Arthur Fama

Faculty Scholarship

The New York State Commission on Government Integrity investigated numerous situations throughout the state that revealed just how bad the current law is. Our findings and a pro- posed municipal ethics act that we drafted to correct the law's deficiencies are contained in the following report, "Municipal Ethical Standards: The Need for a New Approach." Our pro- posed Act would set out the minimum ethical standards that should be observed in every municipality throughout the state. The premise here is that there are certain basic features to good government that make sense for all governments, no matter what their size …

The Fair Housing Amendments Act Of 1988: New Strategies For New Procedures, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Resolving The Remedial Dilemma: Strategies Of Judicial Intervention In Prisons, Susan P. Sturm

Faculty Scholarship

During the last several decades, courts have undertaken to remedy ongoing constitutional and statutory violations in a variety of public and private institutions. Once a court determines that an institutional pattern or practice violates the law, it must face the challenge of structuring a process that will lead to the elimination of the illegal conditions or practices. Whether this judicial activity is called "ordinary" or "extraordinary," the remedial process in institutional reform litigation may lead the trial court to engage in a range of roles beyond those usually required to "resolve a traditional private dispute.

Courts involved in institutional reform …