Digital Commons Network^™

Religiously Based Premises And Laws Restrictive Of Liberty, Kent Greenawalt

Faculty Scholarship

My subject concerns the connection between religious premises and political decisions that restrict people's liberty. This topic has implications for the constitutionality of laws adopted on religious grounds, and I sketch the most important of these implications at the conclusion of this article. My main focus, however, is the proper attitudes of citizens and legislators in our liberal democracy, and, in particular, whether they should rest their judgments on religious premises. In addressing this issue, I concentrate on the responsibilities of citizens and on laws restricting consenting sexual acts and abortions. My main burden is to illustrate two radically different …

Into The Hands Of Strangers, George J. Annas

Faculty Scholarship

Movie critic David Denby has asserted that American theatergoers are a "professional avant-garde audience" who "cannot be shocked by what others would find unintelligible... [and] have lost the capacity for outrage."' This analysis of American theater can be aptly applied to clinical medical education.

I assume almost every nonmedical professional reading "Death at a New York Hospital" will be horrified and outraged at the "treatment" Ms. Hewitt was subjected to in the hospital. Many physicians will too; but it is likely that more will be as understanding of the actions of the intern and residents as was Dr. A, the …

A Modified Approach To Article 9 Deficiencies In Missouri, William H. Henning

Faculty Scholarship

Unlike real property foreclosures, which are the subject of detailed statutory regulation, Part 5 of Article 9 establishes a free-wheeling system for personal property foreclosures which gives significant latitude to secured creditors. The secured party can "sell, lease or otherwise dispose of any or all of the collateral" so long as proper notice is given and "every aspect of the disposition including the method, manner, time, place and terms. . . [is] . . . commercially reasonable." If the disposition creates a surplus, it must be turned over to the debtor; if part of the debt remains unpaid, the secured …

A New Employment Policy For The 1980’S: Learning From The Victories And Defeats Of Twenty Years Of Title Vii, Jerome M. Culp

Faculty Scholarship

No abstract provided.

Avoidance Of Completed Real Estate Foreclosures In Bankruptcy, William H. Henning, Grant S. Nelson

Faculty Scholarship

The Eighth Circuit has ruled that in certain situations noncollusive real estate foreclosures can be set aside as fraudulent conveyances. This theory has generated considerable debate, but even if it is reversed legislatively trustees may be able to obtain comparable results under a preference theory.

Confidence In Probability: Burdens Of Persuasion In A World Of Imperfect Knowledge, Neil B. Cohen

Faculty Scholarship

No abstract provided.

The Dog And His Shadow: A Response To Overcast And Evans, George J. Annas

Faculty Scholarship

Aesop's Fable, "The Dog and the Shadow," begins with a dog walking over a bridge with a piece of meat in his mouth. Looking down into the stream, he sees his shadow. Thinking it is a bigger dog, with a piece of meat twice the size of his own, the greedy dog decides to get it. Snarling, he opens his mouth to attack. At that moment the meat falls from his mouth, into the stream. The dog realizes his mistake, and sadly says to himself, "Grasp at the shadow and lose the substance."

Drs. Overcast and Evans have not yet …

The Reluctant Witness For The Prosecution: Grand Jury Subpoenas To Defense Counsel, Stacy Caplow

Faculty Scholarship

No abstract provided.

May The Government Exclude "Nontraditional" Charities From A Federally-Sponsored Charity Drive?, Joel Gora

Faculty Scholarship

No abstract provided.

A Moderate And Restrained Federal Product Liability Bill: Targeting The Crisis Areas For Resolution, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

A Truce In The Takeover Wars?, Gary S. Lawson

Faculty Scholarship

To a casual observer, hostile corporate takeovers may seem as pointless and destructive a form of modern warfare as the Iran/Iraq conflict. "Raiders" strike with bear hugs, junk bonds, and two-tier tender offers. Incumbent managers respond with poison pills, greenmail payments, shark repellents, and golden parachutes. Congress is wearying of the strife, and may soon impose a cease-fire on the combatants -but to whose benefit?

Fair Representation As Equal Protection, Michael C. Harper, Ira C. Lupu

Faculty Scholarship

In this Article, Professors Harper and Lupu argue that a model of "principled democracy" can systematize the now-disjointed body of labor law that imposes upon labor unions a duty of fair representation (DFR). The authors derive the framework for this model from the normative principle at the core of equal protection theory - that decisionmakers must accord "equal respect" to all within their jurisdiction. To transform equal protection doctrine into standards for the DFR, the authors strip away the institutional components of equal protection doctrine that are appropriate for judicial review of decisions made by public officials but inapplicable to …

Regulating Heart And Liver Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the United States. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal in nature, and thus neither are the solutions. Heart and liver transplants are extreme and expensive medical interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant …

Tax Planning For Interest After Tra 1984: Unstated Interest And Original Issue Discount, Daniel S. Goldberg

Faculty Scholarship

No abstract provided.

Informed Consent To Participation In Medical Research Employing Elderly Human Subjects, Robert L. Schwartz

Faculty Scholarship

The primary question facing researchers who intend to employ elderly human subjects is whether their subjects' advanced age requires that the protection of their autonomy be accomplished in some manner that is different from that employed to protect other subjects. Answering this question will require an analysis of whether elderly subjects have a greater or lesser interest in autonomy than do others who might be subjects in human research, and whether it is more or less important to protect them from potential research abuse. This article will suggest that the elderly may possess several attributes that require that they be …

The Insanity Defense In Fact And Fiction: A Review Essay Of Norval Morris's Madness And The Criminal Law, Susan Herman

Faculty Scholarship

No abstract provided.

Mentally Retarded Criminal Defendants, James W. Ellis, Ruth A. Luckasson

Faculty Scholarship

This Article attempts to provide a preliminary overview of the issues in the Mental Health Standards as they relate to defendants with mental retardation. Part I reviews the history of the treatment of retarded defendants in the criminal justice system. Part II describes the characteristics of people with mental retardation and the consequences of those characteristics. Part III then discusses the extent to which mental retardation should be exculpatory of criminal responsibility. Part IV analyzes the critical importance of competence issues to mentally retarded defendants. Part V elaborates upon dispositional issues including civil commitment and sentencing. Parts VI and VII …

Damned If You Do, Damned If You Don't: Hospitals' Liability For Physicians' Malpractice, Diane M. Janulis, Alan D. Hornstein

Faculty Scholarship

This Article explores some of the problems hospitals face in avoiding liability for the negligence of their independent contractors.  After a critical analysis of the theories underlying imposition of liability, we discuss the sometimes conflicting public policy considerations respecting the mandates given to the modern hospital as these mandates affect hospitals’ liability.

Modernist Social Theory: Roberto Unger’S Passion, James Boyle

Faculty Scholarship

No abstract provided.

Whose Rights? What Danger?, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Exhaustion Of Administrative Remedies: The Lesson From Environmental Cases, Marcia R. Gelpe

Faculty Scholarship

The law governing exhaustion of administrative remedies is complex and confusing and fosters needless litigation: litigation that is burdensome to the courts and costly to defendants, that adversely affects agency decision making and that by its very existence, wrongly influences courts to dispense with the exhaustion requirement. Exhaustion remains troublesome to the courts; many of the decisions are confusing and poorly reasoned. A reexamination of the exhaustion doctrine is called for, not only to indicate how the cases should be decided, but also to clarify the issues sufficiently to guide parties' behavior so that they may avoid litigation over exhaustion's …

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.

Compensation For Victims Of Hazardous Substance Exposure, J. David Prince

Faculty Scholarship

Hazardous wastes, threatening environmental and human safety, are being generated at an alarming rate. In this Article, J. David Prince discusses the threats posed by hazardous wastes and the remedies that are available in Minnesota for dealing with those threats. Professor Prince analyzes a proposed compensation scheme for victims of hazardous waste exposure in Minnesota and suggests that a modification of that scheme be adopted by the Minnesota Legislature.

A New Service On The Texas Legal Horizon: Texas Supreme Court Index, James Hambleton, Jim Paulsen

Faculty Scholarship

Since the late 1950's the Texas Supreme Court Journal has been a mainstay of Texas lawyers, offering speedy copies of all supreme court opinions as well as writ dispositions. Though the Texas Supreme Court Journal is invaluable, it does have one major deficiency. Marian Boner's Reference Guide to Texas Law and Legal History puts the problem succinctly: "There is no cumulation, and the cases are not indexed."

A new publication, Texas Supreme Court Index+, is now making a creditable bid to fill that gap. A weekly service originating in Houston, the Index+ contains up-to-date data on the …

Whatever Happened To 1845 - The Missing Decisions Of The Texas Supreme Court, Jim Paulsen, James Hambleton

Faculty Scholarship

Have you ever noticed a gap in the publication of Texas Supreme Court decisions? Both the Harvard "Blue Book" and the University of Texas "Green Book" inform readers that opinions of the court from 1840 to 1844 (the Republic period) can be found in Dallam's Decisions, while decisions from 1846 on (statehood) are available in Texas Reports or the Southwestern Reporter. That's all very clear, but whatever happened to 1845? This article will supply half an answer to this question; perhaps some reader can provide the other half.

Three questions arise. The first, and simplest: Are there any …

Writ Writing Revisited: The Auto-Cite Approach, James Hambleton, Jim Paulsen

Faculty Scholarship

The November 1984 issue of the Texas Bar Journal contains an article discussing Texas writs of error and writ history ("Does West Write the Right Writs?"). The article examines the two most commonly used sources for Texas writ history: the West Writs of Error and Discretionary Review Tables, and Shepard's Texas Citations. The conclusion was that both contain a number of significant error and omissions.

Actually, there is a third and generally more accurate source for recent Texas writ history. Marketed by Lawyers' Cooperative, the same folks who publish A.L.R. and the Lawyer's Edition of the U.S. Reports, …

Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a …

Professional Peer Review And The Antitrust Laws, Clark C. Havighurst

Faculty Scholarship

Professor Havighurst exhaustively explores the antitrust implications of fee, utilization, and quality-oriented peer review. He places such activity first in a theoretical context and then in an historical context that shows why peer review merits particular antitrust attention. He suggests the defending peer review on the same public-interest grounds as are used in defense of the actions of public regulatory bodies is conceptually mistaken. A more appropriate defense, he says, would be that properly conducted peer review-- which eschews coercion, performs an advisory function, and leaves to others the decision whether to act on its advice-- actually enhances competition in …

Judge Parker And The Public Service State, Peter G. Fish

Faculty Scholarship

No abstract provided.

The Military Justice System And Command Accountability, Charles J. Dunlap Jr.

Faculty Scholarship

The Long Commission, which investigated the terrorist bombing of the Beirut Marine barracks, recommended punitive action against officers in the chain of command. The president, however, ruled out courts-martial. This article examines the concept of command accountability and the role of the military justice system.

Professional dereliction and incompetence have rarely been punished since World War II. . . . Failure to do so has bred an atmosphere of professional unaccountability that encourages, because it does not penalize, repetition of failure on the battlefield.