Digital Commons Network^™

Attorney's Responsibilities: Adversaries At The Bar Of The Sec, Roberta S. Karmel, Joseph C. Daley

Faculty Scholarship

No abstract provided.

The Extraterritorial Application Of The Federal Securities Code, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Constitutional Perspectives On Sex Discrimination In Jury Selection, Elizabeth M. Schneider, Rhonda Copelon, Nancy Stearns

Faculty Scholarship

No abstract provided.

When You Enter The Hospital Check Your Rights At The Door, George J. Annas

Faculty Scholarship

Civil libertarians have little difficulty appreciating the plight of prisoners or mental patients. But tell the average civil libertarian that there are significant and unnecessary restrictions on the individual rights and liberties of patients in general hospitals, and you are likely to encounter a blank stare. There are a number of reasons for this lack of attention to hospitals. One is the general misconception that the problems are minor, or that certain temporary restrictions on individuals are essential if hospitals are to treat sick people properly. An unconscious desire not to perceive ourselves as being at risk may be another …

The Taney Period, 1836-64, David S. Bogen

Faculty Scholarship

No abstract provided.

Nonphysical Torts And Workmen’S Compensation, Arthur Larson

Faculty Scholarship

No abstract provided.

Law And Medicine: Myths And Realities In The Medical School Classroom, George J. Annas

Faculty Scholarship

The goal of legal education in a nutshell is to get the student to "think like a lawyer." The goal of medicolegal courses in medical schools, on the other hand, has often seemed to be to get the medical student to think bad things about lawyers. While the total solution to the legendary distrust between these two professions may not be an understanding of methodology, this article will suggest that one way to increase cooperation between the professions is to teach law in medical schools in a way that emphasizes methods of approaching problems and which seeks to dispel the …

Utilizing Rule 10b-5 For Remedying Squeeze-Outs Or Oppression Of Minority Shareholders, F. Hodge O'Neal, Ronald R. Janke

Faculty Scholarship

No abstract provided.

Law, Lawyers And Social Welfare, A. Kenneth Pye

Faculty Scholarship

No abstract provided.

Constitutional Common Law, Henry Paul Monaghan

Faculty Scholarship

Mr. Justice Powell has publicly characterized the 1974 Term of the Supreme. Court as a "dull" one. Whatever the accuracy of that description, the 1974 Term was, in the public eye, a quiet one. When, late in the Term, the Court ordered the death penalty case held over for reargument, it ensured that the 1974 Term would generate few front-page testimonials to the supreme authority of the Supreme Court. But neither a dull nor a quiet Term can obscure the current reality that the Court's claim to be the "ultimate interpreter of the Constitution" appears to command more nearly universal …

New York's Right Of Privacy – The Need For Change, Kent Greenawalt

Faculty Scholarship

In 1890 Samuel Warren and Louis Brandeis wrote a famous article on the right to privacy. Concerned especially with newspaper publications about private and family matters, they urged that courts recognize an explicit right to privacy from unreasonable publicity. According to Warren and Brandeis, certain already recognized rights did in fact protect a person's wish to keep his private thoughts private, though these 1ights were founded on some more traditional legal theories. For example, the privilege of a writer of a letter to bar anyone's publication of the letter had been articulated in decisions as a property right, even when …

Discretion And Judicial Decision: The Elusive Quest For The Fetters That Bind Judges, Kent Greenawalt

Faculty Scholarship

"The Judge as a Legislator" is the subtitle of the third of Benjamin Cardozo's famous lectures on The Nature of the Judicial Process, delivered in 1921. Though emphasizing the restraints under which judges should act, Cardozo nevertheless compares the task of the judge with that of the legislator:

The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open …

Judicial Scrutiny Of "Benign" Racial Preference In Law School Admissions, Kent Greenawalt

Faculty Scholarship

Racial preferences for blacks generate ambivalence in those who care about racial equality and also believe that individuals should be judged "on their own merits." This ambivalence is reflected in divergent "equal protection" values, the value of eliminating barriers to equality imposed on minority groups and that of distributing the burdens and benefits of social life without reference to arbitrary distinctions. It is hardly surprising, therefore, that after Marco DeFunis, Jr. challenged the constitutionality of racial preferences for admission to a state law school, the Supreme Court's resolution of the issue was awaited with intense interest and some trepidation. For …

Coupling, Parenting And The Presence Of Others Intimate Relationships In Communal Households, D. Kelly Weisberg, Rosabeth Moss Kanter, Dennis Jaffe

Faculty Scholarship

No abstract provided.

The Scope Of The Sixth Amendment: Who Is A Criminal Defendant?, David Rossman

Faculty Scholarship

When the Supreme Court, in Argersinger v. Hamlin, extended the right to counsel to misdemeanor defendants facing imprisonment, it raised the prospect of an eventual expansion of this right to defendants in all criminal prosecutions. This expansion appears to be the probable culmination of the historical development of the right to counsel. While prediction from a trend is never fully satisfactory, a trend toward such expansion exists nonetheless. The interpretation of the scope of the sixth amendment right to counsel as applied to the states has evolved from application to defendants in capital cases, to application to those whose lack …

The Uniform Probate Code: Article Iii Analyzed In Relation To Changes In The First Nine Enactments, Richard V. Wellman, James W. Gordon

Faculty Scholarship

The eleven pioneer states that have adopted the Uniform Probate Code have amended its provisions in various ways. This Article reviews the changes made in article III, the central procedural section of the Code. The Authors analyze the import of these amendments, considering the interplay between the carefully drafted provisions of the Code and its policy of uniformly minimizing the iudicial intervention and expense involved in the administration of estates. The Authors' analysis of these first enactments should prove helpful in those states currently considering adoption of the Uniform Probate Code as well as to lawyers and the courts in …

The Unbundling Of Higher Education, William K.S. Wang

Faculty Scholarship

No abstract provided.

Criminal Law And Procedure, David Rossman

Faculty Scholarship

Trial De Novo. The constitutional foundation underlying the system of trial de novo in Massachusetts was subjected to a frontal assault during the Survey year. The system survived, but there is reason to doubt its continuing validity. The debate over the wisdom of maintaining a two-tiered system of trial courts has been wide-ranging. One of the chief complaints against the trial de novo system is that it insulates trial judges from any meaningful appellate review. This isolation fosters an environment in which trial judges can, with impunity, ignore the constraints placed upon judges in courts of record. It is exceedingly …

The Burger Court, "State Action," And Congressional Enforcement Of The Civil War Amendments, Larry Yackle

Faculty Scholarship

There is an uncertainty abroad in the land. At its root, to speak boldly, lies the fear that the fate of individual liberty in this Nation is in the hands of a Supreme Court whose newest members, cast in the intellectual likeness of a disgraced Executive, lack sufficient sensitivity to libertarian ideals to preserve the American democracy as we know it. Particularly for those who found in the Warren Court the moral leadership necessary to move the country toward a just resolution of the perplexing social problems that plague us all, the skies seem dark. Our constitutional system has always …

Thoughts On Rodriguez: Mr. Justice Powell And The Demise Of Equal Protection Analysis In The Supreme Court, Larry Yackle

Faculty Scholarship

Since the fall of 1969 when Warren Earl Burger took his seat as Chief Justice, the academic community has placed the Supreme Court under a thorough and searching examination. Coming on the heels of enormous and far-reaching activity in the judicial branch, the Burger Court has been called to account for both its adherence to and its rejection of the Warren Court's innovations in constitutional adjudication. The purpose of this article is to continue that constructive criticism by taking stock, after five years, of the Court's performance in one significant class of cases-those interpreting the equal protection clause of the …

Medical Malpractice Litigation Under National Health Insurance: Essential Or Expendable, George J. Annas, Barbara F. Katz, Robert G. Trakimas

Faculty Scholarship

"Medical malpractice" denotes the basis for a civil action brought by a patient against a physician for injuries resulting from negligence. The current method for compensating victims of these occurrences is primarily a fault-and-liability insurance system. The first principle of tort liability is that the party at fault pays for the damage inflicted upon an innocent victim. Whether a doctor is at fault is determined in an adversary proceeding, with both the doctor and the patient represented by counsel. The triers of fact have the task of ascertaining whether the defendant was at fault, and if so, what compensation he …

"Fitness" For Birth And Reproduction: Legal Implications Of Genetic Screening, George J. Annas

Faculty Scholarship

The introduction of accurate methods to screen for genetic defects in the adult, the newborn, and the fetus promises to increase man's control over his own destiny. If that promise is to be realized, however, careful planning will be needed to prevent the technology of screening from imposing its own ethic on man. The invention of the club enabled man to increase his ability to hunt for food, and simultaneously to brutalize his fellow man. In the same way, while advances in genetic screening could lead to an increase in self autonomy for a few, they may also encourage the …

The Federal Income Tax Impact Of The Operating Function On The Choice Of Business Form: Partnership, Subchapter C Corporation, Or Subchapter S Corporation, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

The Right Deed For The Wrong Reason: A Reply To Mr. Robinson, George P. Fletcher

Faculty Scholarship

So far as there is a school of criminal theory in the United States, it is a school devoted to sifting and celebrating the purposes of the criminal law. Discussions in the literature are dominated by endless recitals of the deterrent, rehabilitative and retributive functions of criminal sanctions. The orthodox view is that all of these purposes are relevant and that any proposed rule of criminal law must be measured by its tendency to further one or all of these goals. If the issue is punishing negligence, for example, the standard mode of analysis is to ask whether punishing negligent …

The Future Of Sentencing Reform: Emerging Legal Issues In The Individualization Of Justice, John C. Coffee Jr.

Faculty Scholarship

The dilemma of the American sentencing judge is qualitatively unique. Because our system of criminal justice has embraced to a degree unequaled elsewhere the rehabilitative ideal that punishment should fit not the crime, but the particular criminal, the sentencing judge must labor to fulfill the dual and sometimes conflicting roles of judge and clinician. Entrusted with enormous discretion, he is expected to "individualize" the sentence he imposes to suit the character, social history, and potential for recidivism of the offender before him. Yet, because of the general absence in our Sentencing Reform system of meaningful procedures for the appellate review …

Constitutional Regulation Of Provisional Creditor Remedies: The Cost Of Procedural Due Process, Robert E. Scott

Faculty Scholarship

In recent years a series of Supreme Court decisions has purported to envelop the rights of defaulting debtors in an enlarged concept of procedural due process. The central theme underlying this development is clearly an attempt by the Court to impose some degree of constitutional control on the exercise of provisional creditor remedies. The path that leads from Sniadach v. Family Finance Corp. to North Georgia Finishing, Inc. v. Di-Chem, Inc., is however, far from clear and the cases have provoked serious questioning of the meaning and impact of this doctrine. Due process as reflected in Sniadach and Fuentes …

Uncitral Draft Convention On Carriage Of Goods By Sea, Part 3, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Uncitral Draft Convention On Carriage Of Goods By Sea, Part 4, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Pardoning Power Of Article Ii Of The Constitution (Continued), The , John D. Feerick

Faculty Scholarship

Following President Gerald Ford's unconditional pardon of former President Richard Nixon on September 8, 1974, claims were made that the pardon was invalid because it came before indictment and conviction. Special Prosecutor Leon Jaworski was urged to test its validity in court. Indeed, one federal judge expressed in open court the view that the public interest required the pardon's validity to be tested. The Special Prosecutor's decision not to proceed appears well founded when a review is made of the history of the President's pardoning power.

Pardoning Power Of Article Ii Of The Constitution, The , John D. Feerick

Faculty Scholarship

Following President Gerald Ford's unconditional pardon of former President Richard Nixon on September 8, 1974, claims were made that the pardon was invalid because it came before indictment and conviction. Special Prosecutor Leon Jaworski was urged to test its validity in court. Indeed, one federal judge expressed in open court the view that the public interest required the pardon's validity to be tested. The Special Prosecutor's decision not to proceed appears well founded when a review is made of the history of the President's pardoning power.