Digital Commons Network^™

What Disabilities Are Protected Under The Rehabilitation Act Of 1973?, David Larson

Faculty Scholarship

It can be difficult for an employer or a recipient of federal funds to determine exactly what types of disabilities are protected by the Rehabilitation Act of 1973. Relevant literature has not given a great deal of attention to this specific question. Recent cases, however, provide additional information that can assist in determining which disabilities are protected. The question of what is protected handicap differs from the question of whether a handicapped person is also “qualified.” This article focuses on the threshold question of determining whether a handicap actually exists, concentrating on the Rehabilitation Act of 1973. The definition of …

The Fault With Comparative Fault: The Problem Of Individual Comparisons In A Modified Comparative Fault Jurisdiction, Michael K. Steenson

Faculty Scholarship

Minnesota courts have interpreted the Minnesota Comparative Fault statute as requiring comparison of a plaintiff's negligence with the individual negligence of each defendant. Exceptions to this rule involve joint venture cases. This Article examines the individual comparison rule and explores an alternative rule which provides for a comparison of the plaintiff's negligence with the aggregate negligence of the defendants.

Alternative Families: Obtaining Traditional Family Benefits Through Litigation, Legislation And Collective Bargaining, Barbara Cox

Faculty Scholarship

This article will first discuss the constitutional and equitable basis for extending rights to alternative families. Next, it will discuss each major protection and benefit granted to traditional families and then examine the litigation, legislation, and collective bargaining agreements obtaining or attempting to obtain the same benefit for alternative families. This article will end by arguing that equity and justice require an extension of these benefits to alternative families.

Disabled Newborns And The Federal Child Abuse Amendments: Tenuous Protection, Steven R. Smith

Faculty Scholarship

This Article first explores the scope of the problem of withholding lifesaving treatment from seriously impaired infants. Next, the Article examines the interests involved in decisions to withhold treatment and the rationales for them. It contends that there are limitations on parental child-rearing rights and suggests standards to define when treatment may be withheld. The Article then reviews recent efforts to protect disabled newborns and points out a shift in the focus of these efforts toward a reliance on child abuse and neglect laws. Next, the Article surveys the development of federal and state child abuse and neglect statutes. The …

The Exuberant Pathway To Quixiotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Faculty Scholarship

The writing on international commercial arbitration often is replete with statements affirming the necessity and advocating the progression of the institution. Indeed, the transnational consensus on commercial arbitration is exceptional - a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention, the uniformity of approach among national courts to the implementation of the Convention, and national legislation supportive of the emerging international consensus on arbitration attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international cooperation.

The United States …

The Consequences Of The Insanity Defense: Proposals To Reform Post-Acquittal Commitment Laws, James W. Ellis

Faculty Scholarship

There are sound public policy reasons for considering a reform of state laws concerning commitment of insanity acquittees. A balanced system of special commitment can protect the public safety and, at the same time, give acquittees a fair hearing on their current mental condition and continuing need for confinement. Special commitment can also insulate general commitment laws from political pressures that can arise from the prospect of the possible release of notorious insanity acquittees. Several of the recently proposed model reforms, however, have features that commend them to the attention of state legislators. The Oregon model of using a Psychiatric …

An Offer She Can’T Refuse: When Fundamental Rights And Conditions On Government Benefits Collide, Marie Failinger

Faculty Scholarship

This article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework …

The Interpretation Of Means Expressions During Prosecution, R. Carl Moy

Faculty Scholarship

This article briefly explains how the scope of a claim including a means expression is determined both under the PTO view and a strict application of the statutory language. The lack of consensus and current state of the law in the area are illustrated through an analysis of several recent decisions of the Federal Circuit. The policies underlying the PTO and statutory methods of interpreting means expressions during prosecution are examined in an effort to demonstrate that the statutory method more effectively furthers the policies underlying the patent system.

The Forgotten Era, David S. Bogen

Faculty Scholarship

No abstract provided.

The Official Texas Court Reports: Birth, Death And Resurrection, Jim Paulsen, James Hambleton

Faculty Scholarship

Texas, like a number of other states, has ceased publication of its "official" reporters- -Texas Reports on the civil side and Texas Criminal Reports for criminal cases. What, then, is the "official" version of a Texas Supreme Court or Court of Criminal Appeals decision today? The Southwestern Reporter? Southwestern Reporter: Texas Cases? The Texas Supreme Court Journal? Perhaps the original signed typescript on record in the court clerk's office?

The answer, as the reader may have guessed, is "none of the above." But, as we shall see, a current "official" source for court opinions is, in …

Constitutionalizing The Codes, James Hambleton, Jim Paulsen

Faculty Scholarship

The Texas Legislative Council has been proposing, and the Texas Legislature has been routinely approving, codes since 1967. Just last year, in fact, this program to codify all the statutory law of Texas passed the halfway mark, with adoption of the Election Code, the Government Code, and the Civil Practice and Remedies Code.

The legislation implementing each of these codes contains an identical proclamation: "This Act is enacted pursuant to Article III, Section 43, of the Texas Constitution." Oddly enough, though, the 69th Legislature not only passed these codes; it passed a joint resolution calling for a change in the …

The Pitfalls Of Empirical Research: Studying Faculty Publication Studies, David H. Kaye, Ira Mark Ellman

Faculty Scholarship

This article critiques empirical studies by attorneys in the hopes that they will be held to the minimal standards of research competence that are to be found in other academic fields which rely on empirical studies. Because law-trained scholars are notoriously weak at empirical research, this article identifies some of the methodological considerations that should inform empirical research. These fall into four broad categories: (1) problems of conceptualization, (2) problems of measurement, (3) problems of data presentation and analysis, and (4) problems of inference. This article examines all of these considerations in the context of an empirical survey done by …

Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The Struggle For Judicial Independence In Antebellum North Carolina: The Story Of Two Judges, Walter F. Pratt Jr.

Faculty Scholarship

No abstract provided.

Can Regulators Of International Capital Markets Strike A Balance Between Competing Interests?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Strategies For Ameliorating The Immigration Consequences Of Criminal Convictions: A Guide For Defense Attorneys, Maryellen Fullerton, Noah Kinigstein

Faculty Scholarship

No abstract provided.

Justice William J. Brennan, Jr.: A Justice For All Seasons, Joel Gora

Faculty Scholarship

No abstract provided.

Can Regulators Of International Capital Markets Strike A Balance Between Competing Interests, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

From Confidential Supervision To Market Discipline: The Role Of Disclosure In The Regulation Of Commercial Banks, Alfred Dennis Mathewson

Faculty Scholarship

This Article examines traditional regulatory discipline, the development of a legal basis for confidential supervision, the role of the SEC and federal securities laws in the development of a public disclosure system for banks and bank holding companies, and the utilization of public disclosure to achieve market discipline as a major tool in preventing bank failure and maintaining the stability of the banking system. The scope of this Article is limited to the regulation of commercial banks, whether state or federally chartered, by the following federal bank regulatory agencies: the Office of the Comptroller of the Currency (Comptroller), the Federal …

Private Adjudicators And The Public Interest: The Expanding Scope Of International Arbitration, William W. Park

Faculty Scholarship

When Solomon arbitrated a child custody dispute, the baby almost perished.' Today's arbitrator probably could not propose such a drastic award. Yet courts may refuse to compel arbitration of some disputes for fear that societal interests may suffer a fate similar to that which would have befallen the baby under Solomon's initial judgment. The parties to the dispute are not free to compromise rights other than their own.

The Connection Between Law And Morality: Comments On Dworkin, David B. Lyons

Faculty Scholarship

Our discussions yesterday seemed haunted by a contrast--never quite formulated--between Natural Law and Legal Positivism. The standard interpretation turns on the idea of a "necessary connection" between law and morality. Positivism has often been understood to hold, and Natural Law to deny, that there can be unjust laws.

Separation Of Political Powers: Boundaries Or Balance, Alan L. Feld

Faculty Scholarship

One of the most significant structural elements of the United States Constitution divides the political power of the government between two discrete political institutions, the Congress and the President, in order to prevent concentration of the full power of the national government in one place. This governmental structure has posed a continuing dilemma of how to allow for the shared decisionmaking necessary to effective government while maintaining the independence of each political branch. As the United States Congress reaches its two hundredth anniversary, questions concerning the relationship between Congress and the President, for a substantial time thought by legal scholars …

Access To Health Care And Equal Protection Of The Law: The Need For A New Heightened Scrutiny, Wendy K. Mariner

Faculty Scholarship

Proposals to reduce national expenditures for health care under Medicare and other programs raise questions about the limits on legislative power to distribute health care benefits. The constitutional guarantee of equal protection has been a weak source of protection for the sick, largely because they fail to qualify for special scrutiny under traditional equal protection analysis. Recent decisions of the United States Supreme Court suggest that the Justices seek a newer, more flexible approach to reviewing claims of unequal protection. This Article examines the application of the equal protection guarantee to health-related claims. It argues that traditional equal protection analysis …

Prospective Payment For Hospital Services: Social Responsibility And The Limits Of Legal Standards, Wendy K. Mariner

Faculty Scholarship

The author advances the argument that Diagnosis Related Groups (DRGs) should be recognized as a health care resource allocation technique. In addition, the author offers four societal goals as a gauge for measurement of DRG performance and reviews the incentives and disincentives connected with utilization of DRGs in health care allocation. Finally, the author examines the dichotomous attitudes toward health care distribution which are present in society today. The author's primary goal is to illustrate the potential inequities which could result from allowing DRGs to force allocation of health resources without any reference to social responsibility issues.

Crisis? What Crisis?, Jack M. Beermann

Faculty Scholarship

Bureaucracy is a favorite target for criticism from the left and the right. Bureaucratization of an organization is claimed to cause excessive reliance upon rigid rules or the absence of rules altogether.' Few people want to be part of a large bureaucracy and fewer still want to depend on a bureaucracy for important benefits or policymaking. In recent years, the business of the federal judiciary has increased dramatically. Congress has attempted to meet the rising caseload by increasing the number of federal judges and assistants. As the federal court system becomes more and more like administrative bureaucracies, the question has …

American Income Tax Aspects Of Trans-Border Securities Investment, William W. Park

Faculty Scholarship

Encouraging investment of foreign capital in securities issued by American companies does not always marry well with preserving the integrity of the tax system. The interaction between the anonymity sought by some foreign investors and the disclosure required to enforce the law reminds one of the prophet Ezekiel's vision of a wheel within a wheel, and Shakespeare's Hamlet, which contains a play within a play. For today's topicwhich claims neither the elegance of Shakespeare's drama nor the obscure fascination of Ezekiel's vision--contains a problem within a problem.

Symposium: The Internationalization Of The Securities Markets - Introduction, Tamar Frankel

Faculty Scholarship

This symposium on international trading in securities was the brain child of William Schwartz, Dean of the Boston University School of Law, and John J. Phelan, President of the New York Stock Exchange. The idea was implemented by Donald L. Calvin, Executive Vice President of the New York Stock Exchange, and myself, with the staff and students of Boston University School of Law. The event was held in New York City on October 18, 1985.

The symposium had three purposes: first, to present a picture of the current status of international trading in securities, which has been developing rapidly; second, …

Conflicts-Of-Interest Disqualification In Medical Malpractice Litigation, George J. Annas

Faculty Scholarship

Less than two decades ago it was thought sufficient to say, "When a practitioner is in doubt on an ethical question, the best answer is usually No." A more recent commentator has suggested, however, that "[s]uch platitudes have become increasingly inadequate to guide the attorney facing conflicts of interests in the private practice of law." Because of the general vagueness of the American Bar Association's Model Code of Professional Responsibility, and of state codes based on it, courts have begun to fashion a vast "common law" of conflicts of interest A particularly controversial entry to this body of common law …

The Right Of Elderly Patients To Refuse Life-Sustaining Treatment, George J. Annas, Leonard H. Glantz

Faculty Scholarship

Some legislation, such as law permitting living wills, has addressed the problem of decisions regarding life-sustaining treatment for the elderly. Most of the developing law on the subject is, however, being made by the courts, often in prospective decisions about treatment. These rulings have followed a variety of approaches to the ends of protecting incompetent patients and enforcing the right of the competent to make their own decisions.

Antitrust Implications Of Professional Sports Leagues Revisited: Emerging Trends In The Modern Era, The , Thane Rosenbaum

Faculty Scholarship

In a nation where sports entertainment is such a vital part of the American experience, it is somewhat surprising that the precise law governing the relationship between professional sports leagues and the Sherman Act is so noticeably confused and unsettled. Those who have sought uniformity in this area of law and scholarship had hoped to achieve some level of consistency between the highly developed principles embodied in traditional antitrust law, and that which seems to have evolved in the sports entertainment industry. What has remained from this academic if not athletic exercise is certainly not coherence, but rather a series …