Digital Commons Network^™

Should The Religion Clauses Of The Constitution Be Amended?, Kent Greenawalt

Faculty Scholarship

Our subject, whether the religion clauses of the federal constitution should be amended, goes to the heart of relations between government and the practice of religion in our society. These relations deeply affect the health of both religion and government. When public officials persecute some religions and embrace others, the risks are political tyranny and rigid, unthinking, unfeeling, vapid religion. No one wishes that fate for us.

When most people ask whether the religion clauses should be amended, they are really asking whether judicial interpretations have become so misguided that Congress and state legislatures should intervene and invoke the cumbersome …

Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause Note, Zephyr Teachout

Faculty Scholarship

The Offenses Clause of the United States Constitution gives Congress the authority to "define and punish... Offences against the Law of Nations." This Note considers whether Congress must conform to the jurisdictional rules of customary international law when legislating pursuant to the Offenses Clause.

Review Of The Papers Of John Marshall, Vol Viii: Correspondence, Papers And Selected Judicial Opinions, March 1814-December 1819, Edited By Charles Hobson, James L. Kainen

Faculty Scholarship

No abstract provided.

Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking , Jacqueline Nolan-Haley

Faculty Scholarship

Informed consent has a central role to play in mediation. Without it, mediation's promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation's location, the voluntariness of the parties' consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator's conduct. The proposed approach promotes greater fairness …

A Closer Look: The Case For A Mediation Confidentiality Privilege Has Not Been Made, Scott H. Hughes

Faculty Scholarship

Exploratory article looking at many examples weighing in on: Does the value of mediation settlement outweigh society's right to information? Or a victim's right to evidence?

Foreword: Should The Family Be Represented As An Entity?: Reexamining The Family Values Of Legal Ethics, Russell G. Pearce

Faculty Scholarship

No abstract provided.

Figure, Mark Bernard Turner

Faculty Scholarship

This chapter reviews the origins of construction grammar, beginning with classical antiquity; analyzes the nature of figure in thought and multimodal communication; and provides an anchor for studies of figure in the basic mental operation of conceptual blending.

Testing The Dark Matter Hypothesis With Low Surface Brightness Galaxies And Other Evidence, Stacy S. Mcgaugh

Faculty Scholarship

The severity of the mass discrepancy in spiral galaxies is strongly correlated with the central surface brightness of their disks. Progressively lower surface brightness galaxies have ever larger mass discrepancies. No other parameter (luminosity, size, velocity, morphology) is so well correlated with the magnitude of the mass deficit. The rotation curves of low surface brightness disks thus provide a unique data set with which to probe the dark matter distribution in galaxies. The mass discrepancy is apparent from R = 0, giving a nearly direct map of the halo mass distribution. The luminous mass is insignificant. Interpreting the data in …

Tilted Photoalignment Of A Nematic Liquid Crystal Induced By A Magnetic Field, Charles Rosenblatt, Rolfe G. Petschek

Faculty Scholarship

Nematic liquid crystal cells with polyvinyl cinnamate coated substrates were subjected to ultraviolet light. When this was done in the presence of an oblique magnetic field the photoalignment was found to be temporally and thermally robust, with a large pretilt angle and weak polar anchoring. Moreover, two easy axes with equal and opposite pretilt angle were obtained, such that a magnetic field could switch the director from one easy axis to the other.

Bioactivity Of Marine Organisms: Relationships With Taxonomy, Geography And Depth., John K. Reed, Susan H. Sennett, Peter J. Mccarthy, Tara P. Pitts, Amy E. Wright, Shirley A. Pomponi

Faculty Scholarship

Harbor Branch Oceanographic Institution (HBOI) has a worldwide collection of over 25,000 marine macro-invertebrates and algae representing diverse geographical, latitudinal, and depth (0-3000 ft) ranges. Samples are tested for biological activity in a panel of whole cell and enzyme/receptor assays, including antibacterial, antifungal, cytotoxicity, antitumor, and immunomodulatory assays. Of the taxa sampled, Porifera have the greatest incidence of activity within these screens and especially within the antimicrobial assays. Cnidaria, Chordata (Ascidiacea), Phaeophyta, and Chlorophyta also show strong antimicrobial activity. A comparison of bioactivity and depth of collection indicates that benthic organisms are active throughout the depth range of this study. …

Substantial Assistance And Sentence Severity: Is There A Correlation Substantial Assistance, Ian Weinstein

Faculty Scholarship

How much more severe are sentences imposed in districts with low substantial assistance rates than those in which the rate is very high? In the aggregate, not at all. At first blush this may puzzle readers because substantial assistance (SA) departures are very unevenly distributed across districts and SA accounts for nearly two-thirds of all downward departures, almost 7,900 of the 12,000 in fiscal 1996. Although this pattern could result in gross disparities among districts, my analysis of inter-district sentencing patterns reveals no statistically significant correlation between the rate of SA departures and the average length of sentences imposed in …

Multiracial Discourse: Racial Classifications In An Era Of Color-Blind Jurisprudence, Tanya K. Hernandez

Faculty Scholarship

This Article analyzes the widespread legal ramifications of the Multiracial Category Movement (MCM) and assesses whether the MCM's proposal effectively advances its stated goal of promoting racial equality. After analyzing the legal import of multiracial discourse, the Article determines that the MCM misperception of race and its fluidity inadvertently furthers the progression of color-blind jurisprudence in direct contravention of the MCM goal of promoting racial equality. Part I provides background and identifies the motivating forces behind the MCM as a color-blind movement. Part II critiques the MCM for its adverse effects upon racial justice efforts in furthering the manner in …

Paul L. Murphy: 1923-1997, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

Political Power Of Nuisance Law: Labor Picketing And The Courts In Modern England, 1871-Present, The , Rachel Vorspan

Faculty Scholarship

This inquiry, a comprehensive historical study of the impact of nuisance law on labor picketing in England, comprises six sections. Part I introduces general principles of labor law and nuisance law in the nineteenth century, particularly the legislative scheme of "collective laissezfaire" that emerged after 1871 and remained relatively intact until 1980. Part II examines the use of nuisance doctrines against picketers in the first phase of confrontational picketing from 1889 to 1906, when the appearance of militant unions representing unskilled workers stimulated inventive judicial responses in both private and public nuisance. Part III investigates the much heralded judicial and …

Food For The Lions: Excessive Damages For Newsgathering Torts And The Limitations Of Current First Amendment Doctrines , Andrew B. Sims

Faculty Scholarship

No abstract provided.

Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson

Faculty Scholarship

Conflicts of interest have significant implications for the reliability of scientific expert testimony. However, the courts' treatment of conflicts is not always in accord either with the treatment of conflicts in scientific practice or with the particular problems that scientists' conflicts present in court. In response, this Article proposes two basic changes in the treatment of scientific expert testimony. First, courts should strive to separate issues of bias from issues of scientific validity-the two sets of issues are now conflated at times. Second, courts should pay more attention to biases of scientists who perform the research underlying expert testimony, whereas …

Mass Tort Litigation And Inquisitorial Justice, Howard M. Erichson

Faculty Scholarship

In the past decade, settlement class actions have become increasingly popular in mass tort litigation, having been used successfully in cases such as the Dalkon Shield litigation, the Bjork-Shiley heart valve litigation, and the orthopedic bone screw litigation. Although the Supreme Court's opinion in Amchem has engendered some confusion over the continued viability of mass tort settlement class actions, it appears that such settlements remain a dominant approach to resolving mass tort lawsuits. With increasing frequency, plaintiffs and defendants come to court holding hands, and courts must launch their own vigorous inquiries into the merits of the parties' proffered settlement. …

Impact Of Code Section 367 And The European Union's 1990 Council Directive On Tax-Free Cross-Border Mergers And Acquisitions, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

The Role Of Corporate Law In French Corporate Governance, James A. Fanto

Faculty Scholarship

No abstract provided.

Investor Education, Securities Disclosure, And The Creation And Enforcement Of Corporate Governance And Firm Norms, James A. Fanto

Faculty Scholarship

No abstract provided.

Jury Awards For Medical Malpractice And Post-Verdict Adjustments Of Those Awards, Neil Vidmar, Felicia Gross, Mary R. Rose

Faculty Scholarship

No abstract provided.

Teaching Ethics Seriously: Legal Ethics As The Most Important Subject In Law School, Russell G. Pearce

Faculty Scholarship

No abstract provided.

Equitable Compensation For Public Trust Takings, James R. Rasband

Faculty Scholarship

No abstract provided.

The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …

Racial Disparities In The Delivery Of Health Care, Barbara A. Noah

Faculty Scholarship

This Article focuses on the role of conscious and unconscious racial bias in the delivery of care; it does not begin to address the larger issue of inadequate access to care at the outset. Improving access to health care for minorities will undoubtedly have a positive effect on these groups' overall health status; however, to the extent that racial bias in the delivery of care exists apart from problems of inadequate access, the disparity in health status between whites and African Americans will no doubt continue.

Part II of this Article describes racial disparities in a variety of health care …

Judicial Resolution Of Issues About Religious Conviction, Kent Greenawalt

Faculty Scholarship

What can judges and lawyers learn about religion from those whose field is religious studies, and from others who can illuminate the phenomenon of religion? Using examples provided in Winnifred Fallers Sullivan's paper, I want to place this general question within the fabric of free exercise law.

What I say assumes that some legal issues she raises have reasonably clear answers. Given the cavalier way the Supreme Court turned free exercise law upside down in Employment Division v. Smith, and given its harsh reception of the Religious Freedom Restoration Act (RFRA), which had received overwhelming Congressional support, little in this …

Recommendations For An Environmentally Sound Federal Policy On Western Water, Reed D. Benson

Faculty Scholarship

The organizations and individuals who have produced this report have worked for years to promote environmentally sound federal policy and action with respect to water in the American West. The Western Water Policy Review Advisory Commission's (the "Commission") evaluation of these issues presents an excellent opportunity to address long-standing concerns. We believe the Commission can help advance federal policy to promote sustainable use, management and protection of western waters. We begin with a brief look at current water problems in the West from our perspective. We then identify four general priorities for the federal government: taking steps toward restoring more …

Strengthening What Remains, Christine Zuni Cruz

Faculty Scholarship

This paper is intended to encourage discussion and stimulate action and thought as well as to support the ongoing work in tribal courts in this area. We are involved in an ongoing process of developing an indigenous body of law and system of justice. We must pay particular attention to how we are going about the development of our court systems and look closely at what is developing. Incorporating customary law, whether wholly or partially, into our developing legal systems makes them truly unique to our individual tribes and reflective of the concepts we, as Indian people, have of law …

Secret Knowledge Of Genocide: British Failure To Disclose The Killing Of Jews In 1941, Kent Greenawalt

Faculty Scholarship

In the late summer and early autumn of 1941, the British military intercepted coded German radio messages that revealed that German troops were killing large numbers of Jewish civilians in German-occupied parts of the Soviet Union. The British did not make this knowledge public at that time, nor did they use their still classified records during the war crimes trials after the end of World War II.

Commentators more expert than I have addressed themselves to the question of whether the British had a legal obligation to disclose the information from the coded messages. These remarks concentrate on the possible …

The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis

Faculty Scholarship

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …