Digital Commons Network^™

Coercion, Deception, And Other Demand-Increasing Practices In Antitrust Law, Mark R. Patterson

Faculty Scholarship

No abstract provided.

Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick

Faculty Scholarship

It can no longer be doubted that alternative dispute resolution ("ADR") as a substitute for court-based litigation is growing in appeal. The high costs, adversarial nature, and time of traditional litigation have led to the development and popularity of other dispute resolution alternatives. ADR is making substantial inroads into the legal mainstream and is increasingly used in a wide variety of contexts by courts; federal, state, and local governments; businesses and private individuals. According to a recent survey conducted by the National Institute for Dispute Resolution, twenty-eight state courts now have mandatory, non-binding arbitration programs; more than half of the …

Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In …

Dynamical Stability And Environmental Influences In Low Surface Brightness Disk Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

Using analytic stability criteria we demonstrate that, because of their low surface mass density and large dark matter content, low surface brightness (LSB) disks are quite stable against the growth of global nonaxisymmetric modes such as bars. However, depending on their (poorly constrained) stellar velocity dispersions, they may be only marginally stable against local instabilities. We simulate a collision between an LSB and a high surface brightness (HSB) galaxy and find that, while the HSB galaxy forms a strong bar, the response of the LSB disk is milder, manifesting weaker rings and spiral features. The lack of sufficient disk self-gravity …

Biodiversity And Distribution Of Deep And Shallow Watersponges In The Bahamas., John K. Reed, Shirley A. Pomponi

Faculty Scholarship

Nine expeditions were conducted in the Bahamas from 1987 to 1995 for the purpose of collecting marine organisms for biomedical research. Collections concentrated on sponges from various deep water habitats: the fore reef slope and escarpment (30-60 m), the deep fore reef slope and escarpment (60-150 m), and the deep shelf slope (15-922 m). A total of 417 sites were sampled throughout the archipelago using the Johnson-Sea-Link and Clelia Research Submersibles, ROV, and scuba. For each sample, a taxonomic voucher specimen was prepared, and each was documented with in situ and laboratory photographs and videotapes. Collection site and sample descriptions …

Conflicts Of Interest In Legal Representation: Should The Appearance Of Impropriety Rule Be Eliminated In New Jersey - Or Revived Everywhere Else , Bruce A. Green

Faculty Scholarship

Sixty-five years ago, an American Bar Association (ABA) committee interpreting the Canons of Professional Ethics (Canons) concluded that it would be professionally improper for a part-time prosecutor to agree to defend an individual in a civil action while simultaneously prosecuting him on felony charges. The committee acknowledged that the representation of conflicting interests is ordinarily proper with the respective clients' consent. But it said that client consent does not suffice in a case involving a public officer, who has a duty "to be and remain above all suspicion, even at personal financial sacrifice." It concluded that such "[a]n attorney should …

Investment Management Arrangements And The Federal Securities Laws, Harvey E. Bines, Steve Thel

Faculty Scholarship

No abstract provided.

Principles And Passions: The Intersection Of Abortion And Gun Rights , Nicholas J. Johnson

Faculty Scholarship

In this article, Professor Nicholas J. Johnson explores the parallels between the right of armed self-defense and the woman's right to abortion. Professor Johnson demonstrates that the theories and principles advanced to support the abortion right intersect substantially with an individual's right to armed self-defense. Professor Johnson uncovers common ground between the gun and abortion rights - two rights that have come to symbolize society's deepest social and cultural divisions - divisions that prompt many to embrace the abortion right while summarily rejecting the gun right. Unreflective disparagement of the gun right, he argues, threatens the vitality of the abortion …

Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan

Faculty Scholarship

This Article suggests, on the broadest level, that the history of the "right to passage" in the past two centuries is explicable only in terms of the complex interaction between formal legal doctrine on the one hand and social and political pressures on the other. Specific challenges to public order significantly shaped the evolution of legal rules, but these rules, once established, constrained official action and compelled the authorities at critical junctures to develop countervailing strategies. This exploration confirms that neither an externalist nor internalist approach to legal history by itself adequately explains historical change and, moreover, that the relative …

Role Of Personal Values In Professional Decisionmaking, The , Bruce A. Green

Faculty Scholarship

The 1908 Canons of Professional Ethics directed a lawyer to "obey his own conscience."' Lawyers receive similar advice today. Writings on legal practice encourage lawyers to make professional decisions based on their moral values and religious beliefs, as expressed in the familiar injunction: to be charted by one's own "moral compass." Underlying this advice is an assumption about the professional norms - namely, that they accommodate, if not contemplate, lawyers' reliance on personal values. This assumption finds some support in the contemporary codes of lawyer conduct, which acknowledge a role for the lawyer's "conscience" or "moral judgment." Yet, it is …

Less Is More: Teaching Legal Ethics In Context Symposium: 1997 W. M. Mikeck Foundation Forum On The Teaching Of Legal Ethics, Bruce A. Green

Faculty Scholarship

We who teach legal ethics employ many of the teacher's arts to win our students' appreciation for the course. We do not always succeed. As Deborah Rhode has observed, "[t]here are inherent problems and infinite ways to fail in teaching this subject." Yet, we continue to seek a method for teaching the course effectively. If nothing else, our efforts have led to the development of a substantial body of literature on teaching legal ethics to which this Article will contribute. Its focus is on what, rather than how, to teach. This Article asks: What should be the content of the …

Construction Of Race And Class Buffers In The Structure Of Immigration Controls And Laws, The Symposium: Citizenship And Its Discontents: Centering The Immigrant In The Inter/National Imigination: Part Ii: Section Three: Rethinking Agency: Global Economic Restructuring And The Immigrant, Tanya K. Hernandez

Faculty Scholarship

In the midst of current anti-immigration sentiment, which is motivating dramatic changes in the United States immigration laws, there exists the myth that prior immigration laws were more equitable and humanitarian. Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the racial makeup of the nation. Specifically, national preoccupation with the maintenance of a "White country" is reflected in immigration law. The continued national preference for White immigrants is explicitly featured in the visa profiling codes of U.S. embassies and consulates. This Essay employs a race-conscious lens to …

Force Majeure And Hardship Under The Unidroit Principles Of International Commercial Contracts, Joseph Perillo

Faculty Scholarship

No abstract provided.

Equal Protection Held Hostage: Ransoming The Constitutionality Of The Hostage Taking Act, Victor C. Romero

Faculty Scholarship

This Article contends that, following the Supreme Court's lead in Adarand Constructors, Inc. v. Peña and City of Cleburne v. Cleburne Living Centers, Inc., the continuing maltreatment of noncitizens in this country requires that federal alienage classifications be reviewed with the same strict, or at least heightened rational basis, scrutiny applied to state legislation.

Part II of this Article describes the 1979 Hostage Taking Convention and sets forth some of its provisions in an effort to better understand the impetus for the HTA. Part III examines the legislative history of the HTA and briefly describes the Yunis case as …

The First Amendment In The Supreme Court: The Future Lies Ahead, Joel M. Gora

Faculty Scholarship

No abstract provided.

Overcoming Challenges In The Global Classroom: Teaching Legal Research And Writing To International Law Students And Law Graduates, Diane Edelman, Mark Wojcik

Faculty Scholarship

No abstract provided.

Inside The Restatement, Aaron Twerski

Faculty Scholarship

No abstract provided.

Altering The Balance Between State Sovereignty And Competition: The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Faculty Scholarship

In the post-Seminole Tribe world, the legal analysis in situations where states have chosen regulation over competition, supplanting the free functioning of markets, will diverge depending upon the identity of the defendant. If a state, its agencies, or departments are the named defendants, the broader Eleventh Amendment analysis controls and claims for damages against government entities must be dismissed on the ground of sovereign immunity. If the defendant is a private firm, the narrower State Action Doctrine, which has been crafted to balance true exercise of state sovereignty against the goal of competition, provides immunity for private defendants. As …

The Role Of Arbitration In Resolving Transnational Disputes: A Survey Of Trends In The People’S Republic Of China, Catherine A. Rogers, Frederick Brown

Faculty Scholarship

The purpose of this Essay is to provide investors and practitioners with a realistic overview of the strengths and limitations of international arbitration in China. Part I of this Essay provides some general comments about the economic, social, and cultural reasons why arbitration is a popular choice among both international investors and Chinese nationals. Part I concludes that arbitration can only provide a partial solution to the ills of China’s legal system. Part II examines how the observations in Part I manifest themselves in recent developments affecting arbitration in China. Part III examines the range of efforts by foreign investors …

A Distant Mirror: The Bill Of Peace In Early American Mass Torts And Its Implications For Modern Class Actions, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Attorney-Client Privilege, Ethical Rules, And The Impaired Criminal Defendant, The , James A. Cohen

Faculty Scholarship

Attorneys who represent possibly incompetent defendants charged with criminal conduct face difficult ethical issues, implicating professional duties of loyalty, zealous representation, and confidentiality-as an ethical question and as a matter of the law of evidence. The principles of agency underlying the attorney-client relationship are also implicated when the defendant's capacity is in doubt. In the ordinary criminal case, the client has at least implicitly authorized his lawyer's conduct. But if the defendant is impaired, the client may not have the mental capacity to authorize the attorney's actions. Defense counsel representing the possibly incompetent criminal defendant will often be the only …

Will Books Survive In Tommorow's Library?, Pat Newcombe

Faculty Scholarship

The Author discusses how Library leaders foresee the library of the future providing a complementary combination of both digital and book collections. The complexity of technology change will call for library professionals who are just as comfortable navigating a cyberspace of electronic information resources as working with traditional resources. Libraries in the future must maintain a balance between the extremes of the digital library and the low-tech library of the past.

Shareholder Enforced Market Discipline: How Much Is Too Much?, Eric J. Gouvin

Faculty Scholarship

This Article considers the federal banking regulation regime implemented in response to the widespread bank failures of the 1980s and early 1990s. The first section of the Article examines the moral hazard problem created by the presence of the deposit insurance scheme and the market discipline debate that has attempted to correct the moral hazard problem. The Author argues that the law has evolved to make bank holding companies the primary enforcers of market discipline. The Article’s second section examines the specific regulatory changes that have been designed to create an incentive for bank holding companies to impose discipline on …

Voicing Differences (Comment), Margaret E. Montoya

Faculty Scholarship

Jane Aiken and Kimberly O'Leary undertake the difficult work of developing specific approaches and techniques for taking account of characteristics such as race/ethnicity, gender, dis/ability, and sexual identity in clinical pedagogy. Carolyn Grose uses outsider narratives and popular culture to challenge the "pre-understanding" of students, and to assist them to accept client stories as true and valid. Focusing on the professional value of striving to promote justice, fairness, and morality identified in the MacCrate Report, Professor Aiken exhorts us to promote justice by unmasking privilege, the invisible package of unearned assets--about which I (we? or you?) was "meant" to remain …

Sustainable Consumption And The Law, James Salzman

Faculty Scholarship

No abstract provided.

Spending Limits And The Squandering Of Candidates' Time, Vincent A. Blasi

Faculty Scholarship

Today I begin with a narrow agenda, a single idea, but an extravagant ambition. My narrow agenda is that I wish to address only the topic of campaign spending limits, and only the issue of their constitutionality in the face of First Amendment objections. The policy questions regarding whether spending limits are equitable, efficacious, and/or enforceable are deeply difficult and interesting but beyond my ken on this occasion.

My single idea is that spending limits are best justified on the ground that they protect candidates for office from having to devote an inordinate amount of their time to the task …

From Gladiators To Problem-Solvers: Connective Conversations About Women, The Academy, And The Legal Profession, Susan P. Sturm

Faculty Scholarship

Dissatisfaction permeates the public and professional discourse about lawyers and legal education. Diverse communities within and outside the profession are engaged in multiple conversations critiquing legal education and the profession itself. These conversations, though linked in subject matter and orientation, often proceed on separate tracks.

One set of conversations explicitly focuses on women and people of color, centering on their marginalization and underrepresentation in positions of power. Those concerned about race and gender exclusion often participate in separate communities of discourse. Indeed, the symposium that spawned this article framed the inquiry about higher education in terms of gender. This exclusive …

Legal Coherentism, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Relearning Founding Lessons: The Removal Power And Joint Accountability, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Agency Principles And Large Block Shareholders, Deborah A. Demott

Faculty Scholarship

No abstract provided.