Digital Commons Network^™

Impeachment Of Jury Verdicts: Tanner V. United States And Beyond, James W. Diehm

Faculty Scholarship

No abstract provided.

The Failure Of The Florida Judicial Review Process To Provide Effective Incentives For Agency Rulemaking, Johnny C. Burris

Faculty Scholarship

No abstract provided.

Feminist Jurisprudence - The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda Finley, Carin Clauss, Joan Bertin

Faculty Scholarship

No abstract provided.

A Duty To Warn: One American View Of The Ec Products Liability Directive, Anita Bernstein

Faculty Scholarship

No abstract provided.

Good Legal Writing: A Guide For The Perplexed, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

Mengele's Birthmark: The Nuremberg Code In United States Courts, George J. Annas

Faculty Scholarship

Experimentation on human beings is so difficult to justify that the attempt is seldom even made. Usually its justification is simply assumed, and vague notions of progress or national emergency are suggested as sufficient rationales. The United States, a society dedicated to both progress and human rights, has been profoundly ambivalent about human experimentation. On the one hand, we have consistently argued in our ethical codes that the rights and welfare of research subjects must be protected; on the other hand, we have consistently used perceived emergencies, both national and medical, as an excuse to jettison individual rights and welfare …

Love Makes A Family--Nothing More, Nothing Less: How The Judicial System Has Refused To Protect Nonlegal Parents In Alternative Families, Barbara Cox

Faculty Scholarship

Part I of this article discusses the legal system's recognition of parental rights and enumerates the possible constitutional, statutory, and equitable theories available for protecting the parental rights of nonlegal parents. Part II considers the cases that have rejected the attempts by members of alternative families to use these theories to obtain this protection. Part III discusses the barriers to political power that will make it extremely difficult and time-consuming to achieve legislative change in these areas, and argues that the courts should use the means available to them currently to protect these nonlegal parents and their children while the …

Mental Health Malpractice In The 1990s, Steven R. Smith

Faculty Scholarship

This article analyzes the current levels and kinds of mental health malpractice claims. It also discusses the direction of individual and institutional malpractice in the 1990s and considers potential reforms. Finally, the article argues that the current system is inadequate to deal with many mental health injuries and that patient plaintiffs should have the option of pursuing malpractice claims in a private, less threatening forum.

Good Intentions Gone Awry: The Impact Of New York's Equitable Distribution Law On Divorce Outcomes, Marsha Garrison

Faculty Scholarship

No abstract provided.

Evidence Scholarship, Old And New, Roger C. Park

Faculty Scholarship

No abstract provided.

Slaying The Monsters Of Cost And Delay: Would Disclosure Be More Effective Than Discovery?, William W. Schwarzer

Faculty Scholarship

No abstract provided.

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 …

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, …

A Normative Theory Of Public Law Remedies, Susan Sturm

Faculty Scholarship

The remedial process in public law litigation is a practice in search of a theory. Courts are actively engaged in attempting to remedy violations of constitutional and statutory norms in complex organizational settings. The traditional adversary conception of adjudication has proven inadequate to the task of structuring remedies and promoting compliance in these settings. In response, lawyers, judges, and litigants are employing a variety of innovative roles and processes that do not conform to the accepted adjudicative ideal. Remedial activity in public law litigation frequently entails negotiation, informal dialogue, ex parte communication, broad participation by actors who are not formally …

The Trouble With Legal Ethics, William H. Simon

Faculty Scholarship

Legal ethics is a disappointing subject. From afar, it seems exciting; it promises to engage the central normative commitments that make lawyering a profession and that account for much of the nonpecuniary appeal of the lawyer's role. Thus, when people see public spirit among lawyers threatened by commercial self-seeking, they often prescribe increased attention to the teaching and -discussion of legal ethics as a remedy.

But close up, legal ethics usually turns out to be dull and dispiriting. At most law schools, students find the course in legal ethics or professional responsibility boring and insubstantial, and faculty dread having to …

Reinventing The Outside Director: An Agenda For Institutional Investors, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Managerialist rhetoric puts the institutional investor between a rock and a hard place. The institutional investor is depicted as a paper colossus, alternatively greedy and mindless, but in all events a less important corporate constituency than that other kind of investor, the "real" shareholder. The unspoken corollary is that, regardless of the institution's investment strategy, its interests may appropriately be ignored.

An institution that trades stock frequently is considered a short-term shareholder without a stake in the future of the corporation. According to the familiar argument, the short-term shareholder has no more legitimate claim on management's attention than does a …

Justice Brennan, Peter L. Strauss

Faculty Scholarship

The editors of the St. John's Law Review have given me the boon of a few pages in which to celebrate Justice Brennan with you. The problem for a former law clerk, for anyone who has known this man, is to know where to begin, and how to keep the appreciation within manageable compass.

Voice, Not Choice, James S. Liebman

Faculty Scholarship

In John Chubb and Terry Moe's book, choice is hot; voice is not. As influential as their book has become in current policy debates, however, its data and reasoning may support policies the reverse of those that the authors and their "New Paradigm" disciples propose. In this review, voice is hot; choice is not.

Constitutional Control Of Military Actions: A Comparative Dimension, Lori Fisler Damrosch

Faculty Scholarship

The purpose of this essay is to examine some aspects of the legal framework for military activity in the internal law of some of the world's most powerful states. The international community has a major stake in the constitutional evolution of member states as regards the authority to decide to go to war. That stake – or those interests, since they are plural (and hold some possibility for contradiction) – can be identified as follows:

(1) to strengthen trends toward constitutionalism generally, by which I mean the concept of governance based on law;
(2) to strengthen trends toward civilian control …

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 …

Why Parity Matters, Susan Herman

Faculty Scholarship

No abstract provided.

Note, Sex(Ual Orientation) And Title Vii, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports

Faculty Scholarship

After describing the basic legal and policy issues surrounding the qualified immunity defense and the use of novelty to explain procedural defaults in habeas cases, Part I of this article advocates a standard for both types of cases that asks whether a person exercising reasonable diligence in the same circumstances would have been aware of the relevant constitutional principles. With this standard in mind, Part II examines the qualified immunity defense in detail, concluding that in many cases public officials are given immunity even though they unreasonably failed to recognize the constitutional implications of their conduct. Part III compares the …

Introduction To Symposium: Achieving Justice In Arbitration, Thomas E. Carbonneau

Faculty Scholarship

This symposium attests to the depth of scholarship that now surrounds the law of arbitration and to arbitration's widening adjudicatory mission in matters international and domestic. Authored by senior and emerging scholars who share a commitment to professional excellence, the various contributions not only assure continuity in arbitral scholarship, but also underscore the growing sophistication of arbitral practice and illustrate the complexity of the relationship between arbitration and the legal process. This symposium represents an inquiry into the convergence and divergence of legal and arbitral adjudicatory values and what impact these similarities and differences might have upon the functioning and …

Evidence Engendered, Kit Kinports

Faculty Scholarship

Part I of this article briefly describes feminist legal theory and its evolution. Part II then discusses the extent to which evidence as a whole is a gendered topic that reflects predominantly male traits and ideals, and Part III analyzes various specific evidentiary doctrines from a feminist perspective. Finally, Part IV examines way of incorporating feminist theories in teaching an evidence course.

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 …

Corporations, Markets, And Courts, Jeffrey N. Gordon

Faculty Scholarship

The times they are a changin'. Vanguard firms of the 1980s takeover boom have announced associate layoffs and salary freezes because business is down. Bankruptcy and corporate reorganization are the hot new specialties as reflected in law school class size and law firm entrepreneurialism. Acquisition activity has fallen dramatically from the halcyon days of the 1980s. The gargantuan headline-grabbing hostile bid is now rare. In particular, the "boot-strap, bust-up" highly leveraged transaction that so engaged the passions of corporate managers and raiders now seems part of the history of corporate finance rather than its future.

Many forces have played a …

Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg

Faculty Scholarship

In Robins Dry Dock and Repair Co. v. Flint, the Supreme Court laid down the general proposition that claims for pure economic loss are not recoverable in tort. Although courts have sometimes ignored or distinguished Robins, its holding is still a central feature of tort law. In a recent en bane decision regarding claims by those injured by a chemical spill in the Mississippi River, the Fifth Circuit engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law.

The Robins rule is overbroad, lumping together a number of …

How The Proxy Rules Discourage Constructive Engagement: Regulatory Barriers To Electing A Minority Of Directors, Ronald J. Gilson, Lilli A. Gordon, John Pound

Faculty Scholarship

During the 1980s, both sides of the hostile takeover controversy viewed proxy contests in terms that bordered on the mythical. Those made uneasy by the takeover phenomenon, especially management, held out proxy contests as an alternative, almost utopian mechanism through which a civilized debate about corporate strategy and structure could be held. As the Delaware Supreme Court put it, "[if the stockholders are displeased with the actions of their elected representatives [in blocking a hostile takeover], the powers of corporate democracy are at their disposal to turn the board out.” In contrast, those who believed that takeovers were necessary to …

Shareholder Initiative: A Social Choice And Game Theoretic Approach To Corporate Law, Jeffrey N. Gordon

Faculty Scholarship

When it comes to specific business matters, it seems that an objecting shareholder can do no more than offer a "precatory" resolution that provides shareholder advice on the issue. Adoption of such a resolution obviously sends a strong signal to management, as do informal contacts by important shareholders, that a management seeking to avoid a control contest may be well-advised to heed. Nevertheless, management can ignore such expressions of shareholder. preference and, indeed, can pursue policies and extraordinary transactions that it knows shareholders would reject. Thus for the large public corporation the pattern of delegation gives management virtually unbounded decisionmaking …