Digital Commons Network^™

The Mechanisms Of Market Efficiency, Ronald J. Gilson

Faculty Scholarship

Of all recent developments in financial economics, the efficient capital market hypothesis ("ECMH") has achieved the widest acceptance by the legal culture. It now commonly informs the academic literature on a variety of topics; it is addressed by major law school casebooks and textbooks on business law; it structures debate over the future of securities regulation both within and without the Securities and Exchange Commission; it has served as the intellectual premise for a major revision of the disclosure system administered by the Commission; and it has even begun to influence judicial decisions and the actual practice of law. In …

Aspects Of Puritan Jurisprudence; Comment On Berman, Revolution And Law: Ii The Puritan Revolution And English Law, Barbara Aronstein Black

Faculty Scholarship

In his learned and informative lecture on the Puritan Revolution and English law, Professor Berman tells us that England in the seventeenth century witnessed fundamental, revolutionary change, both religious and legal; a "Puritan belief system" became dominant and the English constitution and laws were transformed. According to Professor Berman, while there have been studies of the interconnections between religious change and constitutional change, nobody has attempted to relate overall change in the legal system to change in the belief system. However, "the new law that emerged in England as a result of the upheavals of 1640 and 1689 must be …

Resolving The Paradox Of The Innocent Construction Rule, David Larson

Faculty Scholarship

The application of the innocent construction rule in defamation cases has led to illogical and questionable holdings. This article will explain the nature of that rule and illustrate its use by focusing on cases arising in Illinois. It will review the recent case of Chapski v. Copley Press, where the Illinois Supreme Court rejected the innocent construction rule, and raise the possibility that additional reform may be necessary in Illinois. Finally, other jurisdictions relying upon similar rules of interpretation will be identified and discussed.

Preliminary Injunctions: The Varying Standards, Arthur D. Wolf

Faculty Scholarship

The Author undertakes a survey in this Article which shows that the Supreme Court and the courts of appeals have not articulated or applied consistent criteria for preliminary injunctive relief. Their decisions have described a sinuous path through primary standards, alternative tests, and sliding scale variations. Part of the difficulty may be because the Supreme Court has not taken a firm hand in resolving conflicts between and among the circuits on critical issues involving interlocutory injunctions. In addition while the courts of appeals make reference to each others' opinions, they have not demonstrated a desire to achieve uniformity in their …

Lawyers, Politics, And The "Lawyers' Interest": An Historical Inquiry, James W. Gordon

Faculty Scholarship

The assumption that the occupational identification of "lawyer" is the salient feature in evaluating political motivation is interesting, if questionable, according to the Author. Does occupational identity overwhelm other identities? Are politically active lawyers really a homogeneous group? Are they less affected by competing identities associated with wealth, geography, familial and constituency concerns, political ideology, party considerations, or any of the myriad other sources of public and private motivation of behavior? Surely the hypothesis that politically active lawyers behave differently from nonlawyers is worth investigating. This Article offers some preliminary responses to these questions posed, which are grounded in empirical …

Thinking Like A Statistician: The Report Of The American Statistical Association Committee On Training In Statistics In Selected Professions, David H. Kaye

Faculty Scholarship

In 1983, a subcommittee of the American Statistical Association composed of legal educators and one judge issued a report describing existing programs for educating law students in statistics and offering recommendations for improving these programs. This article summarizes that report.

Arbitral Adjudication: A Comparative Assessment Of Its Remedial And Substantive Status In Transnational Commerce, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for disputes in private international commerce. Its adjudicatory features respond well to the sui generis dispute resolution needs of international commercial contracts. Most significantly, an arbitration agreement acts as an elaborate choice-of-forum clause. It allows the parties to satisfy their need for a predictable and effective dispute resolution process by creating a more realistic and workable framework that supersedes the fundamentally parochial alternative proffered by national legal systems. The party autonomy principle that underlies arbitration gives the contracting parties the power to fashion a remedial process tailored …

The Press And The Public Interest: An Essay On The Relationship Between Social Behavior And The Language Of First Amendment Theory, Lee C. Bollinger

Faculty Scholarship

I would like to explore in this essay one aspect of the contemporary American debate over the theory of freedom of speech and press. The subject I want to address is this: whether the principle of freedom of speech and press should be viewed as protecting some personal or individual interest in speaking and writing or whether it should be seen as fostering a collective or public interest. Sometimes this issue is stated as being whether the first amendment protects a "right to speak" or a "right to hear," though in general the problem seems to be whether we should …

Preliminary Procedural Protection For The Press From Jurisdiction In Distant Forums After Calder And Keeton, David I. Levine

Faculty Scholarship

No abstract provided.

Rectification Of Client Fraud: Death And Revival Of A Professional Norm, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

On The Outside Looking In: The Legal Historian's Perspective On Rare Book Collections, Jenni Parrish

Faculty Scholarship

No abstract provided.

Mexican Liberals And The Pueblo Indians, 1821 - 1829, G. Emlen Hall, David J. Weber

Faculty Scholarship

When independence from Spain seemed an irreversible fact and he could no longer avoid acknowledging it, the last Spanish governor of the isolated frontier province of New Mexico, the loyal Facundo Melgares, ordered celebrations in honor of the birth of the new Mexican nation. On 6 January 1822, the streets of Santa Fe rang with the sound of church bells and guns fired into the air, as people made their way to Mass, participated in processions, listened to speeches, watched a special play, and danced well into the night. Among the revelers were Pueblo Indians from Tesuque who performed a …

Rethinking Exclusion–The Rights Of Cuban Refugees Facing Indefinite Detention In The United States, Richard A. Boswell

Faculty Scholarship

No abstract provided.

Dillon V. Legg Revisited: Toward A Unified Theory Of Compensating Bystanders And Relatives For Intangible Injuries, John L. Diamond

Faculty Scholarship

No abstract provided.

Law As An Instrument Of Educational Policy-Making, David Jung, David L. Kirp

Faculty Scholarship

No abstract provided.

Conflicts Among Circuits And Transfers Within The Federal Judicial System, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Arbitration Of International Contract Disputes, William W. Park

Faculty Scholarship

International commercial arbitration has been the victim of its own success. Arbitration is often the only dispute resolution process acceptable in business contexts where parties from different countries have rejected recourse to each other's legal system at the outset of the contractual relationship. For example, when a Swedish shipyard contracts to build tankers for an agency of the Libyan government, the Swedes are unlikely to relish the prospect of appearing before Libyan courts, and the Libyans may view submission to the courts of Sweden (or of another industrialized Western nation) as an affront to Libyan national sovereignty. Neither the Swedish …

Sources In American Legal History, Jenni Parrish

Faculty Scholarship

No abstract provided.

The Convergence Of The Law Of State Responsibility For Injury To Aliens And International Human Rights Norms In The Revised Restatement, Thomas E. Carbonneau

Faculty Scholarship

The now celebrated (infamous to some) section 711 of the Restatement of Foreign Relations Law of the United States (Revised) is meant to replace the allegedly dated and obtuse black-letter content of sections 178 through 183 of the Restatement (Second) of Foreign Relations Law of the United States with more contemporary, subtle, and economical provisions.

This Article briefly assesses the significance of these disclaimers against the unmistakable "new look" of section 711. Even upon initial perusal, the divergence in content and presentation between the existing provisions and the recommended formulation of the law of state responsibility for injury to aliens …

Roger Traynor: Teacher, Jurist, And Friend, James R. Mccall

Faculty Scholarship

No abstract provided.

Children Of The Night: The Adequacy Of Statutory Treatment Of Juvenile Prostitution, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Sexual Abuse Of Children: Recent Developments In The Law Of Evidence, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Refusal Of Lifesaving Treatment For Minors, George J. Annas

Faculty Scholarship

I feel very comfortable talking about human rights, civil rights, the role of individual privacy, autonomy, and dignity in making decisions about oneself. Yesterday's topics concerning adults and privacy, however, were much easier than today's, which deal with children. It's not difficult to argue for the right of competent adults, whether it be in Texas' or California,2 to make their own decisions. As much as we may or may not agree with their decisions, at least arguing that -competent individuals like Dax Cowart and Elizabeth Bouvia have a right to make their own decisions makes a lot of sense; the …

The Business Judgement Rule, Tamar Frankel

Faculty Scholarship

Symposium: Current Issues in Corporate Governance: Conference Panel Discussion

Prof. Kozyris: Our discussion today will focus on the so-called "business judgment rule," a judicially developed law concept that the business decisions of corporate management should not be second-guessed by the courts. The courts will not interfere with such decisions as they are being made and carried out, nor will they impose liability on management if it turns out that the decisions were wrong.

The Consumer's Emerging Right To Boycott: Naacp V. Claiborne Hardware And Its Implications For American Labor Law, Michael C. Harper

Faculty Scholarship

Hard cases do not always make bad law. Sometimes, when confronted with records that will yield neither to the direct application of established legal principles nor to factual manipulation, courts articulate, or at least suggest, a new principle which should and often does refine a body of old law. The Supreme Court's decision in NAACP v. Claiborne Hardware Co." should become a prominent and salutary example of such hard cases. Before Claiborne Hardware, the Court had indicated that legislatures, for rational economic policy reasons, could make peaceful consumer boycotts illegal.' Confronted with compelling facts in the Claiborne Hardware …

Biological Monitoring: The Employer's Dilemma, Frances H. Miller

Faculty Scholarship

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers’ economic stability. Often these hazards are documented and dealt with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses.

This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Antitrust Standing, Antitrust Injury, And The Per Se Standard, Daniel C. Richman

Faculty Scholarship

In 1970, a district court observed: "We must confess at the outset that we find antitrust standing cases more than a little confusing and certainly beyond our powers of reconciliation." The court could hardly have been faulted, for the confusion it noted has been endemic to these cases since the creation of the treble-damages action. Courts have never read section 4 of the Clayton Act literally to allow treble damages to every plaintiff able to attribute an economic loss to an antitrust violation. This unwillingness to recognize every such injury is fully consistent with the essential principle of antitrust law …

Rethinking Joint Custody, Elizabeth S. Scott, Andre Derdeyn

Faculty Scholarship

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce. The legal system is embracing this arrangement with remarkable enthusiasm, although until recently it was viewed as being of questionable legality and antithetical to the best interest of the child. Today, thirty states have joint custody laws, most of which have been enacted since 1980. A growing number of the more recent …

Barnacle Plate Sediment Production By Sheepshead, The Indian River, Florida., Charles M. Hoskin, John K. Reed

Faculty Scholarship

Living barnacles eaten by sheepshead fishes results in the production of broken barnacle plate sediment. The yearly rate of production of broken barnacle plates is 4,9 kg m-2 and varies seasonally, with the largest mean flux in summer (22,5 g m? day-l) and the least in winter (1.9 g m-2 day"). The mean grain size mode of broken barnacle plates is positively correlated with the flux of broken barnacle plates, Experiments with exclusion and inclusion cages support the postulation that increases in flux and size of broken barnacle plates are caused by the feeding activity of larger sheepshead.