Digital Commons Network^™

Institutional Review Of Medical Research: Cost-Benefit Analysis, Risk-Benefit Analysis, And The Possible Effects Of Research On Public Policy, Robert L. Schwartz

Faculty Scholarship

It is reasonable to expect IRBs to develop and apply policy as other public policy agencies do. In fact, the risk-benefit analysis now required of IRBs appears to be analogous to the cost-benefit analysis adopted by public policy analysts. But, as we shall see, the new risk-benefit criterion is far less comprehensive and valid than the traditional cost-benefit model.

Mobile Homes?--Public And Private Controls, Robert L. Schwartz

Faculty Scholarship

The mobile home of today is a far different creature than that from which it was bred. Changes in size, appearance, safety, convenience, and desirability as a place to live have caused the modem mobile home to bear little resemblance to its ancestors. Functioning as a permanently emplaced dwelling, the mobile home has come to be recognized as undeserving of the label "mobile." Other than by place of manufacture, mobile homes have become increasingly indistinguishable from conventional single family dwellings, raising the question of whether mobile homes can reasonably be restricted from areas reserved for single family dwellings. Land controls, …

Eliminating The "Defect" In Design Strict Products Liability Theory, John L. Diamond

Faculty Scholarship

No abstract provided.

No Light At The End Of The Pipeline: Confusion Surrounds Legislative Courts, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Violence – Legal Justification And Moral Appraisal, Kent Greenawalt

Faculty Scholarship

Thought about a "Right to Violence," the subject of this symposium, is difficult. Once one has adjusted to the paradoxical conjunction of the terms "right" and "violence," and recognized that people may have rights to commit violent acts in some circumstances, one must face the disturbing fact that feelings about violence are highly colored by peculiar psychological dispositions and political ideologies. Especially in respect to violence that is committed in defiance of law, the search for fair bases of moral judgment proves elusive.

The main theme of this essay is that the law itself can provide illuminating points of reference …

Punishment, Kent Greenawalt

Faculty Scholarship

Although punishment has been a crucial feature of every legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for punishment in particular cases. A third relates to the degree of severity that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices.

The main part of this theoretical overview of the subject of …

The Impact Of Revised Article 9 On Missouri's Fixture Financing Scheme, William H. Henning

Faculty Scholarship

In 1963, Missouri adopted the Uniform Commercial Code, including Article 9, which integrated the existing state laws governing the use of personal property as security. Since that time, significant revisions of Article 9 have been approved by the Code's national sponsors, representing substantial changes in the law of secured transactions. These revisions have been introduced in the Missouri legislature but have not yet been enacted. It seems reasonably certain that they will be enacted in the near future.

The area that has been more extensively revised than any other is Article 9's treatment of security interests in fixtures. These revisions …

The Political Offense Exception As Applied In French Cases Dealing With The Extradition Of Terrorists, Thomas E. Carbonneau

Faculty Scholarship

There is no doubt that terrorism is a dangerous, costly and complex problem. Commentators have speculated extensively about its ideological character and other analysts have studied its sociological roots and psychological origins. Despite all this attention, there is a lack of consensus in the international community about whether terrorism is no more than a sensational form of criminality or a legitimate mode of political expression.

This article does not attempt to deal with all of the multifarious aspects of contemporary terrorism; its ambition is much more modest in scope, centering upon traditional legal mechanisms and doctrines that can be adapted …

The Reagan Administration's Habeas Corpus Proposals, Larry Yackle

Faculty Scholarship

"Democracy," said Churchill, "means that if the door bell rings in the early hours, it is likely to be the milkman." He might have added that if the caller is not the milkman, but a police officer, Anglo-American democracy contemplates that the writ of habeas corpus will be available to the citizen awakened and dragged off into the darkness. The Great Writ has no substantive content of its own but provides the machinery for putting claims before state and federal courts-for translating substantive principles of liberty into effective law. The writ is process, but more than process. It is the …

Behind Closed Doors, Peter G. Fish

Faculty Scholarship

No abstract provided.

Legal Accountability And The Ncaa, John C. Weistart

Faculty Scholarship

No abstract provided.

Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Competitive Process And Gray Market Goods, The , Jacqueline Nolan-Haley

Faculty Scholarship

Although it has the appearance of benefiting the consumer, the phenomenon of gray market goods is, for the most part, a species of unfair competition. Where an exclusive distribution contract between foreign and domestic entities enhances interbrand competition and satisfies a rule of reason analysis, it should be considered a protectable property interest. There is little justification for permitting gray market imports to interfere with that interest by taking advantage of the good will associated with the distribution, marketing, warranties and servicing provided by the United States distributor. The antitrust goal of promoting long-run consumer interests is not advanced by …

In Vitro Fertilization And Embryo Transfer: Medicolegal Aspects Of A New Technique To Create A Family, George J. Annas, Sherman Elias

Faculty Scholarship

IVF and ET conjure up a variety of images, from "test tube babies" to Steven Spielberg's extraterrestrial. Indeed, it is sometimes difficult to separate science fiction from scientific reality. Nonetheless, the extracorporeal fertilization of a human egg followed by transfer to a human uterus and birth of a child, has been repeated in a number of countries around the world. In vitro fertilization (IVF) and embryo transfer (ET) are now reality.' Most of us applauded this new technology along with the parents of the resulting children. These infertile couples were able, with the help of IVF, to have their own …

English Judicial Recognition Of A Right To Privacy, David J. Seipp

Faculty Scholarship

The average Englishman's habits of reserve and regard for his own privacy are legendary. It is surprising, therefore, that English courts have, until very recently, shown great reluctance to recognize privacy as an interest worthy of legal protection in its own right. The experience of other common law countries has not been the same; privacy law has flourished in the United States' and has gained a foothold in Australia and Canada. Moreover, a right to privacy has received international recognition in the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and the European Convention on …

The Right To Refuse Treatment: A Model Act, George J. Annas

Faculty Scholarship

Although the right to refuse medical treatment is universally recognized as a fundamental principle of liberty, this right is not always honored. A refusal can be thwarted either because a patient is unable to competently communicate or because providers insist on continuing treatment. To help enhance the patient's right to refuse treatment, many states have enacted so-called "living will" or "natural death" statutes. We believe the time has come to move beyond these current legislative models, and we therefore propose a Model Act that clearly enunciates an individual's right to refuse treatment, does not limit its exercise to the terminally …

Leveling The Road From Borg-Warner To First National Maintenance: The Scope Of Mandatory Bargaining, Michael C. Harper

Faculty Scholarship

The Supreme Court's most recent effort to distinguish nonmandatory bargaining topics, First National Maintenance Corp. v. NLRB, ¹⁹ illustrates the Court's lack of clarity in this area and vindicates Cox's and Wellington's criticisms of the Court's approach in Borg-Warner. In First National Maintenance (F.N.M.), the Court held that an employer's decision "to shut down part of its business purely for economic reasons" was outside the scope of mandatory bargaining.²⁰ The Court could cite no evidence that Congress intended to prevent employee representatives from obtaining full effective bargaining over such decisions, nor did it articulate any general principle to …

Employer Withdrawal From Multiemployer Bargaining--Charles D. Bonanno Linen Service V. Nlrb, Franklin G. Snyder

Faculty Scholarship

Large numbers of employers in this country, particularly small businesses, are members of multiemployer bargaining units. Historically, employers and unions have been able to withdraw from those units when the bargaining process has reached a stalemate. A recent decision of the United States Supreme Court, however, has made it more difficult for employers to withdraw from multiemployer units even in the face of a prolonged bargaining impasse. The decision, which settles a long-standing dispute between the National Labor Relations Board (Board) and several circuit courts of appeals, is a boon to labor unions, for it prohibits employer withdrawal in the …

The Law School Library: Its Function, Structure, And Management, Robert J. Desiderio

Faculty Scholarship

The law library has a special and unique importance because of the nature of our legal system and its role as a laboratory for anyone involved in a legal proceeding. Students, faculty, lawyers, judges, and lay persons cannot accomplish legal work without the library. Law libraries, in the process of transition, are planning or implementing computer-based retrieval systems and video devices for training and instruction. Law librarians have significant responsibilities for accurate information retrieval and teaching legal research techniques.

Seizing The Middle Ground Between Rules And Standards In Design Defect Litigation: Advancing Directed Verdict Practice In The Law Of Tort, Aaron Twerski

Faculty Scholarship

No abstract provided.

Nonjudicial Foreclosure Under Deed Of Trust May Be A Fraudulent Transfer Of Bankrupt's Property: Durrett V. Washington National Insurance Co., Franklin G. Snyder

Faculty Scholarship

In theory, the substantive rights of secured creditors such as mortgagees are affected much less by bankruptcy proceedings than those of unsecured creditors. In practice, however, bankruptcy proceedings have affected mortgagees. Filing a bankruptcy petition automatically stays pending foreclosures. Trustees in bankruptcy also can set aside foreclosures of certain liens obtained by unsecured creditors and certain mortgages and deeds of trust executed in the year preceding bankruptcy. The decision in Durrett adds yet another weapon to the bankruptcy trustee's arsenal: the power to void nonjudicial foreclosure sales even though the sale is proper and final under state law.

The Scope Of Section 1985(3) In Light Of Great American Federal Savings And Loan Association V. Novotny: Too Little Too Late?, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Book Review (Reviewing Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air (1981)), John C. Dernbach, Thomas Y. Au

Faculty Scholarship

No abstract provided.

Life And Death Decisions In The Nursery: Standards And Criteria For Withholding Lifesaving Treatment From Infants, Steven R. Smith

Faculty Scholarship

That the conduct of human affairs does not always conform to the requirements of the law is a surprise to no one. But in few areas of critical life and death decisions is there such a disparity between commonly recognized principles of law and developing medical practice as exists in the area of withholding lifesaving medical care from infants, notably defective infants. The law is said to restrict physicians and parents from withholding lifesaving treatment from infants for the purpose of causing their deaths. Yet it is reported that it is not uncommon for lifesaving treatment to be denied severely …

In Situ Growth Rates Of The Scleractinian Coral Oculina Varicosa Occurring With Zooxanthellae On 6-M Reefs And Without On 80-M Banks., John K. Reed

Faculty Scholarship

Rates of linear branch extension were determined for Oculina varicosa for one year on a nearshore, shallow-water reef (6 m] and on a shelf-edge. 0. varicosa coral bank (80 m) off central eastern Florida, U.S.A. Both site and season had a significant effect on growth with most of the variability due to the site factor. Linear branch growth was significantly greater at 80 m (x=16.1 mm/yr) than at 6 m (x= 11.3 mm/yr) although temperature was significantly lower at 80 m than 6 m (x=16.2, 24.6° C, respectively). The growth of the 6-m coral, possessing zooxanthellae, showed a negative response …

Community Composition, Structure, Areal And Trophic Relationships Of Decapods Associated With Shallow- And Deep-Water Oculina Varicosa Coral Reefs: Studies On Decapod Crustacea From The Indian River Region Of Florida, Xxiv., John K. Reed, R. H. Gore, L. E. Scotto, Kim A. Wilson

Faculty Scholarship

Decapod crustaceans associated with living colonies of the scleractinian coral Oculina varicosa were sampled quantitatively for I year at 4 reef stations encompassing depths of 6, 27, 42, and 80 m off the central eastern Florida coast. A total of 42 samples of individual colonies yielded over 2,300 decapods in 15 families, 35 genera and 50 species, and was species-rich in xanthid and majid crabs (10, 6 spp., respectively), and alpheid shrimp (9 spp.). The community was predominantly anomuran with two species of hermit crabs (Pagurus carolinensis, P. piercei), a porcellanid crab (Megalobrachium soriatum) and a galatheid crab (Galathea rostrata) …

Foreign Investors Real Property Tax Act: Historical Perspective And Critical Evaluation, William D. Metzger

Faculty Scholarship

This Article first discusses the United States tax treatment of foreigners generally and the pre-Foreign Investors Real Property Tax Act withholding and taxation scheme with respect to foreign investment in United States real estate. Then follows a discussion of the several ways in which foreign investors were, before the Act, able to avoid tax on the disposition of United States real estate and a critical evaluation of the Act's response to those avoidance methods. Finally, a discussion of the Act's enforcement provisions and a general discussion of withholding of tax on nonresidents is provided.

Free Speech, Property, And The Burger Court: Old Values, New Balances, Joel Gora, Norman Dorsen

Faculty Scholarship

No abstract provided.

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Faculty Scholarship

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …

The Skokie Legacy: Reflections On An "Easy Case" And Free Speech Theory, Lee C. Bollinger

Faculty Scholarship

Few legal disputes in the last decade captured public attention with such dramatic force as that involving a small band of Nazis and the village of Skokie. For well over a year, the case was seldom out of the news and often thought to merit front page coverage. It all began in the spring of 1977 when Frank Collin, the leader of the Chicago-based National Socialist Party of America, requested a permit to march in front of the Skokie village hall. The community, with a Jewish population of over 40,000, several thousand of whom had survived the Holocaust, mobilized all …