Digital Commons Network^™

"Weightier Than A Mountain": Duty, Hierarchy, And The Consumer In Japan, Anita Bernstein, Paul Fleming

Faculty Scholarship

No abstract provided.

Democracy And Feminism , Tracy E. Higgins

Faculty Scholarship

Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …

How Can We Sleep While The Beds Are Burning? The Tumultuous Prison Culture Of Attica Flourishes In American Prisons Twenty-Five Years Later, Justin P. Brooks

Faculty Scholarship

No abstract provided.

“And To The Republic For Which It Stands”: Guaranteeing A Republican Form Of Government, Catherine A. Rogers, David L. Faigman

Faculty Scholarship

Most scholars who have addressed voter initiatives suggest only that the Guarantee Clause requires that the Supreme Court take a more active role in reviewing the constitutionality of state initiative measures. In contrast, we argue in this Essay that the Guarantee Clause establishes a per se prohibition against state initiatives. Part I of this Essay briefly examines the historical origins of the Guarantee Clause and the Founders’ apprehensions of direct democracy. Part II observes how modern state initiatives provide contemporary illustrations of the Founders’ philosophical concerns about direct democracy. Part III concludes that state initiative measures constitute per se violations …

A Lawyer's Guide To Modern Valuation Techniques In Mergers And Acquisitions, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

Introduction To Tax Issue Of The University Of Miami Entertainment & Sports Law Review, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

Bankruptcy Law In European Countries Emerging From Communism: The Special Legal And Economic Challenges, Samuel Bufford

Faculty Scholarship

Bankruptcy law is developing rapidly in the countries of Central and Eastern Europe (CEE) that have recently escaped the domination of the Union of Soviet Socialist Republics (USSR). The communist governments fell in those countries that were separate from the USSR in 1989, and those countries that were a part of the USSR gained their independence and acquired new non-communist governments in 1989 (the Baltic states) and 1991 (Ukraine, Belarus, Moldova, and Russia). While many other areas of law that are basic to the development of a market economy need substantial development or revision, bankruptcy law is leading the way, …

Direct Vs. Derivative, Or "What's A Lawsuit Between Friends In An 'Incorporated Partnership'?", Daniel S. Kleinberger

Faculty Scholarship

In any context the distinction between direct and derivative claims carries significant consequences. The procedural requirements are different, as are the available remedies. In addition, the remedies benefit different parties. A successful derivative claim typically enriches the corporate treasury, while a successful direct claim typically puts money directly in the hands of the shareholder claimant. Moreover, derivative defendants can shelter behind several powerful bulwarks-including special litigation committees and the business judgment rule-that are unavailable to direct defendants.

Under the 'internal affairs' doctrine, Minnesota law governs the direct/derivative issue for all Minnesota corporations. Current Minnesota law provides inadequate guidance when the …

More Apparent Than Real: The Revolutionary Commitment To Constitutional Federalism, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Policing Speech On The Airwaves: Granting Rights, Preventing Wrongs, Maria Marcus

Faculty Scholarship

Should the FCC take steps to prevent repeated advocacy of specific violent acts on the airwaves? If so, it must meticulously differentiate between mainstream government critics who are exercising First Amendment rights of dissent, and inciters of murder and sabotage. This Article proposes a new test to guide the FCC in that endeavor. Part I begins with an overview of communications law and the FCC's erratic enforcement efforts-what it has chosen to regulate unhesitatingly (e.g., dangerous hoaxes and indecency) and what it has ducked. The next sections will analyze the inadequacy of the Supreme Court's incitement jurisprudence. The 1969 Brandenburg …

Straying From The Path Of The Law After One Hundred Years, The, Tracy E. Higgins

Faculty Scholarship

What common ground can be found between modern feminist legal theory and a century-old essay advocating understanding the law from the perspective of the "bad man"? The question admits of no simple answer. Feminists, including myself, might agree with some irony that "[i]f you want to know the law and nothing else, you must look at it as a bad man" but would add that this is precisely the problem. Of course, Holmes does not use the concept of the bad man in a feminist sense to suggest that the law empowers the bad man at the expense of women. …

Governing Networks And Rule-Making In Cyberspace, Joel R. Reidenberg

Faculty Scholarship

The global network environment defies traditional regulatory theories and policymaking practices. At present, policymakers and private sector organizations are searching for appropriate regulatory strategies to encourage and channel the global information infrastructure (“GII”). Most attempts to define new rules for the development of the GII rely on disintegrating concepts of territory and sector, while ignoring the new network and technological borders that transcend national boundaries. The GII creates new models and sources for rules. Policy leadership requires a fresh approach to the governance of global networks. Instead of foundering on old concepts, the GII requires a new paradigm for governance …

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of …

The Dangers Of Directives Or The False Security Of Forms, Diane E. Hoffmann, Sheryl Itkin Zimmerman, Catherine J. Tompkins

Faculty Scholarship

No abstract provided.

The Carpenter And The Crocodile, Garrett Power

Faculty Scholarship

Pre-revolutionary Baltimore Town grew rapidly in commerce and population. Its harbor on the Chesapeake Bay served a larger trading area than any other American seaport at the time. In the 17770s two young fortune seekers - Leonard Harbaugh, carpenter and Christopher Hughes, silversmith - arrived in Baltimore from Ireland. This paper explores the role that each played in developing Baltimore's physical, monetary and legal landscape.

Short Circuit: The Overselling Of Television In Politics, Larry S. Gibson

Faculty Scholarship

Television and now the Internet are at the forefront of American political campaigning but many local elections are won on the ground with little or no investment in television. This piece, originally developed as a book proposal, examines the development of political campaigns in Baltimore, Maryland and nationally with a particular emphasis on the experience of African American candidates.

Beyond The Class Action Rule: An Inventory Of Statutory Possibilities To Improve The Federal Class Action, Thomas D. Rowe Jr.

Faculty Scholarship

This Article surveys several areas in which legislation might enhance the utility of federal class actions. It does not suggest a statutory form of class action like statutory interpleader, but it takes initial inspiration from the interpleader statutes' treatment of subjects beyond the joinder device itself--subject-matter jurisdiction, venue, personal jurisdiction, and antisuit injunctions. The matters on which legislation might be most useful are supplemental jurisdiction, to overrule the limiting holding of Zahn v. International Paper Co. with some possible parallel broadenings of supplemental jurisdiction for nonclass contexts; and authority to enjoin state-court proceedings that could substantially interfere with the conduct …

Feminism, Law, And Bioethics, Karen H. Rothenberg

Faculty Scholarship

Feminist legal theory provides a healthy skepticism toward legal doctrine and insists that we reexamine even formally gender-neutral rules to uncover problematic assumptions behind them. The article first outlines feminist legal theory from the perspectives of liberal, cultural, and radical feminism. Examples of how each theory influences legal practice, case law, and legislation are highlighted. Each perspective is then applied to a contemporary bioethical issue, egg donation. Following a brief discussion of the common themes shared by feminist jurisprudence, the article incorporates a narrative reflecting on the integration of the common feminist themes in the context of the passage of …

Constitutional Mass Torts: Sovereign Immunity And The Human Radiation Experiments (Note), Nestor M. Davidson

Faculty Scholarship

Part I of this Note explains why the present system does not allow individuals to recover damages against the federal government for violations of the Constitution. It first describes the doctrine of constitutional torts and its limitations. It then discusses sovereign immunity, and explains that Congress has retained sovereign immunity for constitutional torts. It concludes with a discussion of the Supreme Court's policy arguments for not creating a cause of action against the government for constitutional violations. Part II explores the Human Radiation Experiments as a case study in the remedial gaps created by the current scope of Bivens and …

Unfair Business Competition And The Tax On Income Destined Charity: Forty-Six Years Later, Donald Sharpe

Faculty Scholarship

No abstract provided.

A Decade Of Developments In Performance-Based Legal Education, Deborah A. Schmedemann, Christina L. Kunz

Faculty Scholarship

This tribute summarizes some of the accomplishments of William Mitchell college of Law in performance-based learning in legal education between 1986 and 1996. It first chronicles developments in the first-and second-year performance-based courses and then turns to upper-level curricular developments. At each point, it touches on course development and scholarship--the parallel tracks pursued by faculty focusing on performance-based legal education. As a result of these developments, the college is well positioned to contribute to the growth of performance-based learning in legal education nationally.

Law And Ethics In A World Of Rights And Unsuitable Wrongs, Susan P. Koniak

Faculty Scholarship

Law, ethics and morality. What distinguishes these concepts? What connects them? Those are my questions. My argument is this. There is a traditional understanding of the relationship between law and ethics, and that understanding is inadequate as description. While passing as description, the traditional understanding of the relationship between law and ethics is instead normative. The normative message in the traditional understanding is worthy of examination and ripe for critique. This Article offers an alternative method of understanding the relationship between law and ethics and a normative examination of the old and new.

Legal Indeterminacy: Its Cause And Cure, Gary S. Lawson

Faculty Scholarship

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problemsis one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law.' Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use,2 while others argue that originalism's indeterminacy is often overstated.'

Outcome, Procedure, And Process: Agency Duties Of Explanation For Legal Conclusions, Gary S. Lawson

Faculty Scholarship

The so-called Chevron doctrine,' which requires reviewing courts to accept all reasonable agency interpretations of statutes that the agency administers,2 is one of the most important doctrines in modern federal administrative law. Under the now-familiar two-step formulation enunciated by the Chevron court, if Congress "has directly spoken to the precise question at issue ... , that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."3 If the statute is ambiguous, however, the court must accept any permissible, or reasonable,4 interpretation put forth by the agency.5 …

The Politics Of Human-Embryo Research: Avoiding Ethical Gridlock, George J. Annas, Arthur Caplan, Sherman Elias

Faculty Scholarship

[...]abortion is about more than politics; it is fundamentally about ethics, morals, equality, and religion, and how we think about abortion reveals much about how we are likely to think about other life-and-death issues in contemporary American medical practice. Because politics as currently practiced seems so unprincipled, there have been sporadic attempts to redefine abortion-related issues as ethical questions and to set up national panels and advisory groups to examine various practices and make recommendations about their ethics.

Legal Indeterminacy: Its Cause And Cure, Gary S. Lawson

Faculty Scholarship

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problems is one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law. Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use, while others argue that originalism's indeterminacy is often overstated.

Racist Health Care?, Barbara A. Noah

Faculty Scholarship

During the past few years, rationing has become an explicit feature in decisions concerning optimal delivery of health care services, and it poses difficult choices for health care providers and policymakers. Insurers and patients increasingly must balance the desire for access to every possible treatment against concerns about affordability. Costdriven treatment decisions are becoming an unavoidable reality for most patients. Apparently, however, another more pernicious type of rationing occurs in this country. It does not depend on factors such as the likelihood of an optimal outcome, the comparative efficacy of different available treatment modalities, or even the ability to pay …

Introductory Remarks Of Panel Ii: Legal, Medical, And Ethical Considerations For The Future Of Physician-Assisted Suicice Symposium: Physician-Assusted Suicide: Legal Rights In Life And Death: Introductory Remarks Of Panel Ii: Legal, Medicial, And Ethical Considerations For The Future Of Physician-Assisted Suicide, Tanya K. Hernandez

Faculty Scholarship

Once the Supreme Court issues it decision in the cases of Quill v. Vacco1 and Compassion in Dying v. Washington2 regarding the constitutionality of outlawing physician-assisted suicide for competent and terminally ill persons, the tension surrounding legal, medical, religious and ethical issues concerning end of life decision making will not be resolved.

You Really Have Come A Long Way: An Analysis And Comparison Of Role Conflict Experienced By Women Attorneys Today And By Educated Women Twenty Years Ago, Jackie Slotkin

Faculty Scholarship

No abstract provided.

Chapter 11 Case Management And Delay Reduction: An Empirical Study, Samuel Bufford

Faculty Scholarship

Chapter 11 bankruptcy cases will drag on interminably if judges let them. The recent nine-month O.J. Simpson trial was short compared to the careers of some chapter 11 bankruptcy cases. The typical duration of chapter 11 cases can be reduced remarkably, however, through moderate judicial case management.

The data in this study show that relatively modest judicial case management can squeeze a substantial amount of delay out of chapter 11 cases within the context of the present bankruptcy law. The case management program in this study, applied to 81.2% of the chapter 11 case load, shortened by 24.1% the time …