Digital Commons Network^™

Copyright: Factual Compilations And The Second Circuit, Beryl R. Jones-Woodin

Faculty Scholarship

No abstract provided.

An Overview Of Health Law Research And An Annotated Bibliography, Richard A. Danner, Claire M. Germain

Faculty Scholarship

No abstract provided.

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.

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 …

Production And Off-Bank Transport Of Carbonate Sediment, Black Rock, Southwest Little Bahama Bank., Charles M. Hoskin, John K. Reed, David H. Mook

Faculty Scholarship

Surficial sediments between the intertidal zone and 600 m were studied with the objectives of characterizing their source, dispersal pathways and sites of accumulation. Bioerosion is a major source of sediment in the intertidal and shallow subtidal environments. In-situ enclosure experiments showed that the urchin Echinometra lucunter produced 667 mg sediment cm ^-2 yr^-1, and an associated diverse rock infauna produced an additional 183mg cm^-2 yr^-1. Microborers caused erosion of 25 mg cm ^-2 yr ^-1, and feeding activity by the chiton Acanthopleura granulate caused additional erosion of 10 mg cm^-2 yr^{-1 …}

Sterilization Of Mentally Retarded Persons: Reproductive Rights And Family Privacy, Elizabeth S. Scott

Faculty Scholarship

Sterilization is one of the most frequently chosen forms of contraception in the world; many persons who do not want to have children select this simple, safe, and effective means of avoiding unwanted pregnancy. For individuals who are mentally disabled, however, sterilization has more ominous associations. Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge.

Sterilization law has undergone a radical transformation in recent years. Influenced by a distaste for eugenic sterilization …

Child Sexual Abuse, Jeffrey A. Fagan

Faculty Scholarship

Over the past two decades awareness of child sexual abuse among academics and professionals has grown from several convergent trends: the "discovery" of child abuse in the 1960's, concern by feminists over sexual assault and rape, increasing reports to law enforcement and child protective service workers of sexually abused children, and the general "deprivatization" of the family. More recently, general public awareness of child sexual abuse has followed well-publicized cases of child molestation in day-care centers, nationwide concern over pornography and its subsequent links to teenage prostitution, and runaway youth, delinquency, and family violence among adults.

The Limits Of Rationality And The Place Of Religious Conviction: Protecting Animals And The Environment, Kent Greenawalt

Faculty Scholarship

When people hold religious views that have implications for moral choices and for the desirable uses of law, may they properly rely on those religious views in our liberal democracy? The commonly expressed ideas that church and state are separate and that no group should impose its religious views on others may seem to suggest that political dialogue and bases for political decisions should be wholly nonreligious. This position, which is the main target of this Article, receives articulate defense among prominent social philosophers. This Article urges a different position: that no commonly shared ground of decision is available for …

Economic Perspectives On Trade In Professional Services, Jagdish N. Bhagwati

Faculty Scholarship

This paper will bring an economist's perspective to bear on three questions raised at this conference by some of the other important contributions:

1. How are services different from goods;
2. What implications do these differences have for the rules we seek to negotiate to free trade in services; and
3. How can we induce the key developing countries, such as Brazil, Egypt and India, which have generally opposed liberalization of trade in services, to support it?

Answers to these questions will naturally bear critically on the narrower question of international trade in professional, and especially legal, services, since recommendations and decisions on …

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.

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

Faculty Scholarship

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …

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 …

Banning The Bomb: Law And Its Limits, Lori Fisler Damrosch

Faculty Scholarship

We can all agree with the contributors to this volume that nuclear weapons present the threat of unimaginable devastation that could bring an end to civilization and even to life on this planet. The grim calculations and stark images come back again and again, but they cannot be repeated too often: over 50,000 weapons in the United States and Soviet arsenals, each with a destructive force dwarfing the explosions at Hiroshima and Nagasaki; radiation effects producing indescribable suffering and death; environmental damage that defies quantification or prediction; the specter of nuclear winter rendering the earth uninhabitable. No rational being can …

Non-Determinative Discrimination, Mixed Motives, And The Inner Boundary Of Discrimination Law, Sam Stonefield

Faculty Scholarship

This Article describes a form of discrimination – called non-determinative discrimination – that involves types of conduct that are not covered by current doctrine but that should be protected in order to serve the purposes of the laws against discrimination. It addresses the issue of mixed-motive discrimination and anticipates (and provides a framework for) the hostile environment claims of the 1990s.

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Faculty Scholarship

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

The Joys Of Law Library Management Are Without Number, Jenni Parrish

Faculty Scholarship

No abstract provided.

The Battered Woman Syndrome And Self-Defense: A Legal And Empirical Dissent, David L. Faigman

Faculty Scholarship

No abstract provided.

The Revival Of Fact Pleading Under The Federal Rules Of Civil Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

An Unconstitutional Fiction: The Felony-Murder Rule As Applied To The Supply Of Drugs, Lynne H. Rambo

Faculty Scholarship

James Wong and Kent Louie were looking for a good time in Chinatown, and around nine o'clock they got lucky. Two young women agreed to join them. The women, however, wanted some heroin first, so they gave their new companions money and asked them to purchase the drug. After the men obliged, both women injected themselves, and everyone proceeded to a hotel. The next morning, only one of the women woke up. James and Kent, it turned out, had really not been lucky at all; both were tried, convicted and sentenced for felony-murder.

Although the men probably did not know …

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 …

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.

Crime Talk, Rights Talk, And Double-Talk: Thoughts On Reading Encyclopedia Of Crime And Justice (Review Essay), Michael E. Tigar

Faculty Scholarship

No abstract provided.

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 …

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.

Economics Of Public Use, Thomas W. Merrill

Faculty Scholarship

The fifth amendment to the United States Constitution, as well as most state constitutions, provides that private property shall not be taken "for public use" unless just compensation is paid. American courts have long construed this to mean that some showing of "publicness" is a condition precedent to a legitimate exercise of the power of eminent domain. Thus, when a proposed condemnation of property lacks the appropriate public quality, the taking is deemed to be unconstitutional and can be enjoined. In practice, however, most observers today think the public use limitation is a dead letter. Three recent decisions, upholding takings …

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

Faculty Scholarship

No abstract provided.

Victim, Offender, And Situational Characteristics Of Violent Crime, Deborah W. Denno

Faculty Scholarship

The examination of offenses rather than offenders in past research often overlooked the importance of offender characteristics and background. Indeed, a growing body of research suggests that the biological or psychological characteristics of offenders may strongly influence the outcome of particular encounters or future offense behavior. For instance, offenders with poor verbal ability or low school achievement scores may be more prone to repeat confrontational violence, irrespective of the characteristics of the victim or the situation of the offense. Thus, it is important to distinguish between those offenders with short or repeat offense histories, and those offenses which do or …