Digital Commons Network^™

Use Of Comparative Risk Methods In Regulatory And Common Law, Michael S. Baram

Faculty Scholarship

Several persistent problems afflict risk decisionmaking. In the regulatory context, agencies confront the problems of how to prioritize risks for best use of their limited resources and how to determine "how safe is safe enough," or a risk limit, when action is to be taken on a particular risk.

In the trial courts hearing toxic tort actions, the jury must often determine whether an activity is "unreasonably dangerous" or a product is "defective" because of its risk attributes.

To resolve these problems, many have proposed the use of risk comparisons. Now that we can quantify risks, why not compare them …

Legal Fiction, James Boyle

Faculty Scholarship

No abstract provided.

The Universal And The Particular In Legal Discourses, George P. Fletcher

Faculty Scholarship

My target in this article is a set of views that I shall call the functionalist perspective of comparative law. Of course, the word "functionalist" stands for a number of different theories. In order to be precise about the view that I oppose, I shall set my sights on the arguments developed in Otto Kahn-Freund's inaugural lecture Comparative Law as an Academic Subject, published two decades ago.

Social Theory And Political Practice: Unger's Brazilian Journalism, William H. Simon

Faculty Scholarship

Roberto Mangabeira Unger is a citizen of Brazil. While working on Politics, his large-scale treatise on social theory, he has been active in his country's politics. Among the fruits of these activities is a series of political and programmatic commentaries on Brazil published in the Brazilian press. The commentaries apply the style of political analysis and the general political program elaborated in Politics to the recent circumstances of Brazil. Thus, they give an extended illustration of Unger's general social theory. At the same time, they exemplify a form of political writing that attempts to combine ambitious critical social theory …

Made In The U.S.A.: Legal And Ethical Issues In Artificial Heart Experimentation, George J. Annas

Faculty Scholarship

The death of William Schroeder in Louisville, Kentucky, on August 6, 1986, brought to a close a remarkable chapter in public human experimentation. Artificial heart implants represent the most public experiments in the history of the world. The manner in which they are conducted is a matter of utmost public and professional concern, since it graphically portrays the seriousness with which we take our laws and ethical rules regarding the protection of the rights and welfare of human subjects. Unfortunately, the brief history of artificial heart implants is neither a happy nor a proud one. Begun with high hopes and …

"Tastes Great, Less Filling": The Law School Clinic And Political Critique, Robert J. Condlin

Faculty Scholarship

No abstract provided.

Pennsylvania's Implementation Of The Surface Mining Control And Reclamation Act: An Assessment Of How "Cooperative Federalism" Can Make State Regulatory Programs More Effective, John C. Dernbach

Faculty Scholarship

No abstract provided.

Sensory Function And Gating Of Histaminergic Neuron C2 In Aplysia, Hillel J. Chiel

Faculty Scholarship

This paper explores the possible sensory function of the identified histaminergic neuron C2. Mechanical stimulation of a narrow region around the mouth of the animal (perioral zone) elicits brief depolarizing potentials in C2. Extracellular recordings from the peripheral axons of C2 indicate that the depolarizing potentials are due to action potentials that are conveyed from the periphery but do not invade the cell body, since they fail at a region with a low safety factor within the cerebral ganglion. These blocked axonal spikes (A- spikes) function as if they were excitatory synaptic inputs to C2, since the synaptic output of …

An Identified Histaminergic Neuron Modulates Feeding Motor Circuitry In Aplysia, Hillel J. Chiel

Faculty Scholarship

An identified histaminergic neuron, C2, in the marine mollusk Aplysia is a complex mechanoafferent which appears to contribute to the maintenance of food arousal by means of its synaptic connections to the metacerebral cell (MCC). Because C2 also has extensive synaptic outputs to neurons other than the MCC, we studied its possible motor functions. We identified several synaptic followers of C2 and found that some were excitatory motor neurons for extrinsic muscles of the buccal mass, while others were modulatory motor neurons that inhibited contractions. In addition, we found that these neurons and other synaptic followers of C2 received powerful …

Rising Above Principle, Geoffrey C. Hazard Jr.

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 …

Activity Of An Identified Histaminergic Neuron, And Its Possible Role In Arousal Of Feeding Behavior In Semi-Intact Aplysia, Hillel J. Chiel

Faculty Scholarship

The possible functions of histaminergic neuron C2 were studied in an isolated head preparation from which it was possible to obtain intracellular recordings while the buccal mass exhibited feeding-like responses. Application of food to the lips of the isolated head preparation elicited rhythmic buccal movements that appeared to be ingestion responses, since they moved seaweed into the buccal cavity and towards the esophagus, and their frequency and regularity was similar to the ingestion responses studied in a group of intact animals. The ingestion responses of the buccal mass consisted of 2 main phases of movement of the radula from a …

Static And Dynamic Properties Of Polystyrene In Good Solvents: Ethylbenzene And Tetrahydrofuran, K. Venkataswamy, Alexander M. Jamieson, Rolfe G. Petschek

Faculty Scholarship

We report static and dynamic light scattering studies of polystyrenes of narrow molecular weight distribution in ethylbenzene (EtPh) and tetrahydrofuran (THF) as solvents. These experiments generate values for z-average radius of gyration, (Rg)₂, weight-average second osmotic virial coefficient, A₂, z-average translational diffusion coefficients, (Dt)z, and hence the diffusion virial coefficients, kD, and the z-average of the inverse frictional radius, 〈Rf-1〉z. The results show that while for a specific molecular weight the 〈Rg〉z values in THF are similar to our experimental values in ethylbenzene and to literature values in benzene or toluene, the A2 values, as well as hydrodynamic radii, are …

Natural Law And Political Choice: The General Justification Defense – Criteria For Political Action And The Duty To Obey The Law, Kent Greenawalt

Faculty Scholarship

During most of this century, a distinct separation has existed between natural law perspectives and perspectives about the nature of law and about social choices that have dominated American law schools. One could find elaborations of natural law in Catholic law schools and periodicals, but these expressions exercised little influence on the mainstreams of legal thought. In the last two decades, non-Catholics have grown to realize that they have much to learn from natural law approaches, and natural lawyers have tried to enhance their own understandings by references to other perspectives. I am emboldened to proceed by my strong belief …

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 …

Introduction To The Edwin S. Cohen Tax Symposium: An Overview Of Business Taxation, Michael J. Graetz

Faculty Scholarship

It is an honor and pleasure for me to be here today to launch this symposium on current tax reform topics in honor of Edwin S. Cohen on the occasion of his retirement from the University of Virginia as Professor of Law. This is the second occasion I have been asked to speak honoring Ed Cohen on his retirement and, knowing him well, I look forward to many more of his retirements in years ahead.

My assignment today is to provide a brief overview of issues in business taxation. I was tempted simply to repeat the program for this symposium, …

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 …

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

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 …

Calculating Fees Of Special Masters, David I. Levine

Faculty Scholarship

No abstract provided.

Limits To Attorney-Client Confidentiality: A Philosophically Informed And Comparative Approach To Medical And Legal Ethics, Nancy J. Moore

Faculty Scholarship

The proper limits to attorney-client confidentiality are hotly debated by lawyers and legal scholars. Various drafts of the proposed Model Rules of Professional Conduct have included controversial provisions which call for the disclosure of adverse evidence and client perury, as well as more liberal disclosure of completed and intended client wrongdoing than is currently permitted under the Model Code of Professional Responsibility. This Article takes a comparative approach to the problem, utilizing a body of philosophical literature which explores the principle of confidentiality in the physician-patient context This "philosophically informed" approach sets out an analytical framework in which the controversies …

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 …

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.

Third-Party Action Over Against Workers’ Compensation Employer, Arthur Larson

Faculty Scholarship

Wages

Sharing Among The Human Capitalists: An Economic Inquiry Into The Corporate Law Firm And How Partners Split Profits, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Large corporate law firms seem to be in a state of extraordinary flux. Success and failure are both on the rise. Large firms appear to supply a substantial and growing proportion of the legal services consumed by American business enterprises and to hire a significant fraction of the graduating classes of elite American law schools. Moreover, the last twenty years have witnessed a remarkable expansion in both the number of large firms and the absolute size of the biggest. But accompanying this striking success, there are also signs of serious institutional instability. During the last few years, several previously successful …

Supreme Court Report: Five Wins And Nine Losses For Free Speech Fans, Joel Gora

Faculty Scholarship

No abstract provided.

Equalities Real And Ideal: Affirmative Action In Indian Law Review, Lance Liebman

Faculty Scholarship

American legal scholars have devoted surprisingly little effort to studying India. In India, as in America, judges, lawyers, and legislators have had to shape a transplanted legal system with English roots. Both countries have adapted English legal institutions to conditions far more heterogeneous – ethnically, racially, linguistically,and geographically – than those of the mother country. It thus seems no accident that India's constitutional structure parallels that of the United States in so many ways. For example, India has a written constitution that embodies principles of federalism and separation of powers, and that provides for judicially enforced guarantees of individual rights. …

Massachusetts And The Judges: Judicial Independence In Perspective, Barbara Aronstein Black

Faculty Scholarship

This is an essay about an incident that took place in the Province of Massachusetts Bay during the period 1772-1774, an incident that I will call the Affair of the Royal Salary. Close relative of the Stamp Act Crisis, The Boston Tea Party, even the Boston Massacre, the Affair of the Royal Salary similarly involved a clash between the forces of popular government and those of imperial government; like its better known cousins it is part of the story of the coming of the American Revolution in Massachusetts. In addition, since the Salary around which the Affair developed was intended …

Trespass, Nuisance, And The Costs Of Determining Property Rights, Thomas W. Merrill

Faculty Scholarship

The right to exclude intrusions by others, we have it on high authority, is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Yet the right to exclude is not one right; it is itself a collection or "bundle" of rights. With respect to property in land, for example, the right to exclude depends to a large extent on whether the intrusion in question is subject to the common law of trespass or of nuisance. Generally speaking, when the intrusion is governed by trespass, then there is no exception for de minimis …