Digital Commons Network^™

Reconciling Collective Bargaining With Employee Supervision Of Management, Michael C. Harper

Faculty Scholarship

The realities of economic organization in modern industrial states pose a critical dilemma for all who care about democratic ideals. Technological developments and attendant complicated divisions of work have enabled these states to transform their citizens' standards of living; such developments have also, however, brought hierarchical economic organizations' that are unresponsive to the influence of most individual employees. A society that claims to be democratic cannot ignore this condition.² Enhancing individuals' control over their own lives requires institutions that will facilitate democratic decisionmaking about economic production as well as governmental authority.

This Article contributes to thought about such institutions …

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

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 …

Informed Consent In The Post-Modern Era, Wendy K. Mariner

Faculty Scholarship

The doctrine of informed consent' is intended to get physicians to talk to their patients so that patients can make reasonably knowledgeable choices about whether to undergo particular forms of medical care. Although the law has long prohibited treatment without the patient's consent,² physicians have resisted the idea that treatment decisions ultimately are for the patient to make. Only recently have physicians been willing to disclose information about the benefits and risks of recommended therapies. ³ Even with the best of intentions, however, the discussions that do take place are often far from the law's ideal of reasonable disclosure …

In Search Of The Virtuous Prosecutor: A Conceptual Framework, Stanley Z. Fisher

Faculty Scholarship

Questions about the scope and content of the duty to "seek justice" pervade prosecutorial work. Prosecutors are required to serve in a dual role: they are both advocates seeking conviction and "ministers of justice." Observers have complained about a tendency on the part of prosecutors to prefer the former of these "schizophrenic" obligations to the latter. This is commonly described as a tendency to behave overzealously or according to a "conviction psychology. ' "

Baby M, The Surrogacy Contract, And The Health Care Professional: Unanswered Questions, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Gender Bias In The Classroom, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

U.C.C. Methodology: Taking A Realistic Look At The Code, John L. Gedid

Faculty Scholarship

No abstract provided.

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)

Public Safety Exception To Miranda Careening Through The Lower Courts, Daniel B. Yeager

Faculty Scholarship

No abstract provided.

Mental Impairments And The Rehabilitation Act Of 1973, David Allen Larson

Faculty Scholarship

This article examines the question of whether an asserted mental disorder should be regarded as a statutory impairment. The article begins by outlining the Rehabilitation Act and by discussing the diagnostic difficulties that exist in the mental health field. It then surveys specific cases arising under the Rehabilitation Act. Selected cases reviewing state statutory language are also examined. The article provides a broad discussion of the questions and concerns that must be considered when formulating a nondiscrimination policy protecting mentally impaired persons. It concludes by suggesting an approach for handling cases alleging discrimination due to a mental impairment.

The Reception Of Arbitration In United States Law, Thomas E. Carbonneau

Faculty Scholarship

The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards - in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy.

What Is Bayesianism? A Guide For The Perplexed, David H. Kaye

Faculty Scholarship

Bayes' Theorem, Bayesian statistics and Bayesian inference have been the subject of sharp dispute in various writings about legal rules of evidence and proof. This article disentangles the many meanings of "Bayesianism." It sketches several competing interpretations of probability, some leading schools of statistical inference, and the elements of Bayesian decision theory. In the process, it notes the aspects of Bayesian theory that have been applied in studies of forensic proof.

Defending Battered Women's Self-Defense Claims, Kit Kinports

Faculty Scholarship

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases.

Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …

Children's Preference In Adjudicated Custody Decisions, Elizabeth S. Scott, N. Dickon Reppucci, Mark Aber

Faculty Scholarship

Historically, courts usually paid little attention to the child's wishes in deciding which parent should have custody upon divorce. Today, statutes in many states direct courts to consider the child's preference, often as one among several factors that guide decisionmaking. With some exceptions, the law gives only general guidance and does not specify under what circumstances and to what extent the child's desire should affect the decision. Little is known about how important this factor is, what variables influence the weight accorded the child's preference, or how courts obtain and evaluate evidence about the child's wishes.

This Article began as …

Race, Reform, And Retrenchment: Transformation And Legitimation In Antidiscrimination Law, Kimberlé W. Crenshaw

Faculty Scholarship

Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices …

Task Force Reports On Women In The Courts: The Challenge For Legal Education, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Surrogate Parenting: What Should Legislatures Do?, Marsha Garrison

Faculty Scholarship

No abstract provided.

Plemel As A Primer On Proving Paternity, David H. Kaye

Faculty Scholarship

Although in the past courts only permitted genetic evidence in paternity suits to prove that an accused man was not the father, with the advent of new genetic tests, which easily can exclude ninety to nitey-five percent of the population in most cases, the supreme courts of Massachusetts, Oregon, and Utah have held that various genetic tests may be used to prove paternity. While a positive move, the admissibility of genetic proof of paternity raises serious questions as to the manner in which this evidence should be presented in court. In the interests of efficiency, some jurisdictions seem to dispense …

Human Biology And Criminal Responsibility: Free Will Of Free Ride ?, Deborah W. Denno

Faculty Scholarship

This Comment presents three major arguments concerning biological deficiency defenses, using, respectively, a critique of biosocial science research, a statistical model of biological and sociological data, and an examination of theories and philosophies on causation and behavior. First, this Comment argues that there should be no defense to mitigate criminal responsibility except in the less that one percent of cases eligible for the insanity defense. Second, this Comment argues that social science research has not successfully demonstrated sufficiently strong links between biological factors and criminal behavior to warrant major consideration in determining criminal responsibility. Third, this Comment demonstrates that no …

Professional Qualification And Educational Requirements For Law Practice In A Foreign Country: Bridging The Cultural Gap, Roger J. Goebel

Faculty Scholarship

This Article will discuss preparation for transnational legal practice, and the extent of the right to engage in transnational legal practice in major commercial centers. It is divided into five parts: (I) the role of the transnational lawyer in bridging the cultural gap; (II) education in preparation for transnational practice; (III) professional qualification requirements for foreign lawyers in New York and several major commercial centers abroad; (IV) the extent of the lawyer's right to provide services and the right of professional establishment in the EEC; and (V) some general reflections on desirable qualification requirements for law firms and individuals to …

The Case For Gay Rights, Matt Coles

Faculty Scholarship

No abstract provided.

Lesbians, Gays And Feminist At The Bar: Translating Personal Experience Into Effective Legal Argument - A Symposium, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

The Ninth Amendment And The Unwritten Constitution: The Problems Of Constitutional Interpretation, Andrzej Rapaczynski

Faculty Scholarship

This article is about two things; one general, the other specific. The general point is about the nature of interpretation and of the constraints that the text places on interpretation. The specific is about the ninth amendment.

My general claim about interpretation is that no textual provision by itself seriously constrains how it is going to be interpreted. This, I argue, is true not just about the open-ended provisions like the ninth amendment, but quite generally, about all textual provisions. The fact that no text by itself constrains interpretation, however, does not mean that interpretation is unconstrained; only that constraints …

The Scope Of Consular Immunity Under The Vienna Convention On Consular Relations: Towards A Principled Interpretation, Curtis J. Milhaupt

Faculty Scholarship

A consular officer, mistaken for a trespasser as he leaves his mission to attend a cultural function, struggles with a police officer and is subsequently charged with assault and battery. The Vienna Convention on Consular Relations provides that consular officers are immune from jurisdiction for "acts performed in the exercise of consular functions." Does the Vienna Convention shield the consular officer from suit? The scope of consular immunity is uncertain because courts differ in their application of the Convention's immunity rule.

This Note argues that a principled interpretation of the scope of consular immunity consistent with the Vienna Convention requires …

The Search For An Author: Shakespeare And The Framers, James Boyle

Faculty Scholarship

No abstract provided.

The Unwisdom Of Allowing City Growth To Work Out Its Own Destiny, Garrett Power

Faculty Scholarship

No abstract provided.

Holmes And Brandeis: Libertarian And Republican Justifications For Free Speech, Pnina Lahav

Faculty Scholarship

Writing The Name of the Rose, observed Umberto Eco, made him aware of the "echoes of intertextuality." He discovered what "Homer, Rabelais and Cervantes have always known: . . .books always speak of other books, and every story tells a story that has already been told."' The same applies to political and legal theories: they weave the past into the present. Thus, in articulating justifications for freedom of speech, one may look to modern works such as Milton or John Stuart Mill, or one may reach farther back to Aristotle, Plato or Pericles. The choice of intellectual sources as …

Fairy Tales Surrogate Mothers Tell, George J. Annas

Faculty Scholarship

How did surrogate motherhood evolve from a "hare-brained, fly by night" idea of the late 1970s into one that had at least some mainstream, middle-class support in the mid-198os? Many explanations have been suggested. Although the rate of infertility has not increased, infertility is no longer a secret, and there are major public support groups, like RESOLVE, that advocate for infertile couples. New and powerful techniques like IVF (in vitro fertilization) have been developed, and although they help very few people, they have been widely publicized and approved. And babies are fashionable again. As one movie critic put it: "Men …