Digital Commons Network^™

Choosing Judges The Democratic Way, Larry Yackle

Faculty Scholarship

A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of …

Amplifying Bose Corp. V. Consumers Union: The Proper Scope Of De Novo Appellate Review In Public Person Defamation Cases De Novo Appellate Review In Public Person Defamation Cases, Tigran W. Eldred

Faculty Scholarship

In 1984, the Supreme Court in Bose Corp. v. Consumers Union of United States, Inc.¹⁰ explicitly affirmed its longstanding practice¹¹ of independently reviewing a trial court's actual malice determination. At issue was whether an appellate court was bound under Federal Rule of Civil Procedure 52(a)¹² to defer to a trial court's finding of actual malice. The Court concluded that Rule 52(a) was inapplicable to the actual malice decision and that "[a]ppellate judges ... must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity."¹³ The Court, in accord with New York …

Atari Games V. Nintendo: Does A Closed System Violate The Antitrust Laws, Glynn S. Lunney Jr

Faculty Scholarship

As I rushed through the malls this past Christmas, I noticed a new store, one that would not have been possible just a few years ago. It was a Nintendo boutique. I was permitted only to gaze longingly at the games and accessories on display before being pulled away to shop for the things I would actually buy, but I thought it would be fun to return someday and purchase the system and perhaps a few cartridges and accessones.

So, I must admit that my perspective on the Atari v. Nintendo suits will not be that of an unaffected observer, …

The First Integration Of The University Of Maryland School Of Law, David S. Bogen

Faculty Scholarship

No abstract provided.

Divorce Reform And Gender Justice, Jana B. Singer

Faculty Scholarship

The modern shift from fault-based to no-fault divorce has disappointed those who expected the no-fault system to eliminate economic inequality between divorced women and men. The fact that women and their dependent children invariably experience economic hardship after a divorce has caused Lenore Weitzman and other commentators to romanticize the "good old days" of fault-based divorce. Professor Singer attacks the logic of this nostalgia by demonstrating that women were 'not[' better off under the fault-based system. She then proposes an investment partnership model of post-divorce allocation which would insure a fair result for both spouses.

The Advent Of Zoning, Garrett Power

Faculty Scholarship

This essay looks at some of the lawyers and judges who were instrumental in the enactment and judicial approval of American zoning laws.

Aids And Government: A Plan Of Action, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Equal Protection And A Deaf Person's Right To Serve As A Juror, Randy Lee

Faculty Scholarship

No abstract provided.

History And Executive Removal Power: Morrison V. Olson And Separation Of Powers, John L. Gedid

Faculty Scholarship

No abstract provided.

The Athletic Scholarship And The College National Letter Of Intent: A Contract By Any Other Name, Michael J. Cozzillio

Faculty Scholarship

No abstract provided.

Beyond Parity: Section 1983 And The State Courts, Susan Herman

Faculty Scholarship

No abstract provided.

Law Library Management: An Annotated Bibliography, Janet Sinder

Faculty Scholarship

No abstract provided.

The Politics Of Transplantation Of Human Fetal Tissue, George J. Annas

Faculty Scholarship

Research involving human fetal tissue has been the subject of intense political debate in this country for almost two decades, and the use of fetal tissues in transplantation continues this controversy in another forum. Since Roe v. Wade ,1 the landmark decision on abortion by the U.S. Supreme Court in 1973, the federal government has focused public attention on fetal research by creating panels of experts. "3 This conclusion was accepted on a vote of 15 to 2, and included recommendations that the decision to abort be kept independent of the decision to retrieve and use fetal tissue, that recipients …

Feeding The Permanently Unconscious And Terminally Ill Or Dying Is Not Always Compassion, Phebe Saunders Haugen

Faculty Scholarship

A surrogate decision maker may conclude that efforts to mechanically provide liquid nourishment would cause considerable suffering in return for little gain. But such a decision is unquestionably one that can produce great conflict for families and for medical caregivers. Assessment must be made of each patient's situation and of the benefits and burdens that will result if tube feeding is withheld or withdrawn. It may well be, however, that in some cases, the most humane and compassionate treatment for a patient is the withdrawal of all technological interventions, including those that supply nourishment.

Use Of Photogrammetric Techniques To Monitor Coral Reef Recovery Following A Major Ship Grounding., Dennis M. Hanisak, Stephen M. Blair, John K. Reed

Faculty Scholarship

Photogrammetric techniques were used in a detailed study of benthic coral reef communities following a major physical disturbance, the grounding of the freighter Wellwood on Molasses Reef, in Key Largo National Marine Sanctuary, Florida. The sessile reef communities of the Wellwood site and the adjacent unimpacted reef areas were studied with non-destructive samplings of permanently located quadrats to document the recruitment of organisms and reef recovery in the impacted area. The grounding site was rapidly colonized by an algal community that was soon dominated by a fine algal turf composed of filamentous red algae. Although algal diversity and total algal …

Biomedical Research In The Sea, A Search For Drugs And Novel Compounds., John K. Reed, Shirley A. Pomponi

Faculty Scholarship

Biomedical research has discovered numerous pharmaceutical drugs and novel compounds produced by living organisms. Most of this research has focused on terrestrial sources but a potential reservoir of untapped drugs is being discovered in the oceans. Compounds produced from marine sponges, tunicates, bryozoans, soft corals and algae are being tested as potential agents against cancer, AIDS and other diseases. In this effort, the goal of the Division of Biomedical Marine Research (DBMR) at Harbor Branch Oceanographic Institution (HBOI) is to isolate and identify bioactive compounds from marine organisms. Since 1984 over 16,000 macroorganisms have been collected worldwide by HBOI personnel …

State Sovereignty And The Tenth And Eleventh Amendments, Calvin R. Massey

Faculty Scholarship

No abstract provided.

The Federal Rules, The Adversary Process, And Discovery Reform, William W. Schwarzer

Faculty Scholarship

No abstract provided.

After Professional Virtue, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Early Neutral Evaluation: The Second Phase, David I. Levine

Faculty Scholarship

No abstract provided.

A Crazy System: Mental Health Care Delivery In America, Steven R. Smith

Faculty Scholarship

The thesis of the Article is that there has been, and is, a large unmet need for mental health services in America, and that the mental health care delivery system has been so poorly put together that it is incapable of meeting a major portion of the need for services.

Independent Agencies – Independent From Whom?, Sally Katzen, Edward Markey, James Miller, Joseph Grundfest, R. Gaull Silberman, Peter L. Strauss

Faculty Scholarship

No abstract provided.

Facing Up: A Reply, Joseph Raz

Faculty Scholarship

We are all familiar with the peculiar feeling of coming across one's past objectified, as when one overhears others telling how they perceived a certain event in which one played the hero's role. Reading the contributions to this issue was a bit like that. In particular, it made me realise how I have abused the tolerant paper by writing all too much, while leaving so many hostages to fortune, so many loose ends, and expressing so many half-baked ideas. It is also embarrassing because it is like a summons to the confessional, to repent my sins of omission and commission, …

Coming Of Age In A Corporate Law Firm: The Economics Of Associate Career Patterns, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

The traditional American corporate law firm, long an oasis of organizational stability, in recent years has been the subject of dramatic change. The manner in which firms divide profits, perhaps the most revealing aspect of law firm organization because it displays the balance the firm has selected between risk-sharing and incentives, has changed in a critical way. From a long standing reliance on seniority that emphasizes risk-sharing, profit division is shifting to a system based on the productivity of individual partners that emphasizes incentives. With what seems to be only a short time lag from the change in how profits …

Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss

Faculty Scholarship

That is absolutely right. I am sufficiently confused by the facts that are already on the table – two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800. Something is going on there. The other is just a square conflict that our moderator is much better …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Faculty Scholarship

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?

French Copyright Law: A Comparative Overview, Jane C. Ginsburg

Faculty Scholarship

French copyright law has attracted considerable recent attention in the United States. Debate over the nature and scope of legislation permitting U.S. entry into the Berne Union for the Protection of Literary and Artistic Works spurred some of this interest: because France was a founding member of that Union, some participants in the Berne adherence process perceived "Berne level" copyright protection to be synonymous with "French" copyright protection. As Congress continues to consider modifications to the U.S. copyright law, particularly in the area of moral rights, France again supplies a leading example. And the on-going litigation in France concerning the …

Covert Operations, Lori Fisler Damrosch

Faculty Scholarship

As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action – before the intelligence oversight reforms of the l 970s – Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to "perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct," Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an …

Politics Across Borders: Nonintervention And Nonforcible Influence Over Domestic Affairs, Lori Fisler Damrosch

Faculty Scholarship

It is time for a fresh look at the norm of nonintervention in domestic affairs, as applied to nonforcible efforts to influence another state's internal politics. The existence of such a norm is widely proclaimed, and it is commonly assumed to be a legal obligation rather than a mere practice of comity or aspirational objective. For governments, scholars and international organs alike, the "rule" against interference in internal politics seems to be an article of faith; but despite the frequency of its incantation in international discourse, how the norm applies to nonforcible conduct is inadequately understood.

This article considers the …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …