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This State Will Soon Have Plenty Of Laws - Lessons From One Hundred Years Of Codification In Montana, Andrew P. Morriss

Faculty Scholarship

Part II of this Article briefly sketches the codification movement in the United States and the conditions in Montana in the 1890s. The remainder of Part II tells the story of Montana's adoption of the Civil, Criminal, Political, and Civil Procedure Codes of 1895. Part III examines in detail the subsequent treatment of some of the employment law sections of the Civil Code. Part IV draws lessons from codification and the Codes' application for future legal reform efforts.

What To Do When Your Case Is Front Page News: Panel Discussion, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Maurice Rosenberg, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Reforming Legal Ethics In A Regulated Environment: An Introductory Overview, Lawrence G. Baxter

Faculty Scholarship

Abstract not available

Restrictions On Non-Citizens' Access To Public Benefits: Flawed Premise, Unnecessary Response, Richard A. Boswell

Faculty Scholarship

No abstract provided.

Seeing The Elephant, C. Keith Wingate

Faculty Scholarship

No abstract provided.

A Second Look At The Zero Basis Hoax, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Assertive Modesty: An Economics Of Intangibles, Wendy J. Gordon

Faculty Scholarship

At the center of our Symposium stand two papers: "A Manifesto Concerning the Legal Protection of Computer Programs" (Manifesto) and "Legal Hybrids: Between the Patent and Copyright Paradigms" (Legal Hybrids). Both are stimulating. Both are lengthy. As a result, my primary role is that of a guide: this Comment will summarize the authors' proposals, analyze certain aspects in greater detail, and outline their explicit and implicit methodologies. Part I of the Comment describes the papers' positions and methodologies. Part II highlights some of the papers' many contributions to the literature, and offers some other evaluative observations.

An Economic Theory Of The Duty To Bargain, Keith N. Hylton

Faculty Scholarship

Professor Hylton's paper presents an economic theory of the duty to bargain in good faith under the National Labor Relations Act. The duty to bargain alters bargaining incentives in two ways. First, it imposes a duty to disclose relevant information on the informationally advantaged party. Second, by conditioning the right to act unilaterally on satisfaction of bargaining obligations, the duty to bargain brings about a partial reallocation of the parties' entitlements. This partial reallocation increases the potential gains from honest contracting relative to the benefits of exploiting an informational advantage and thus alters incentives in a way that makes honest …

Property Law: 1994 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Hearing Women Not Being Heard: On Carol Gilligan's Getting Civilized And The Complexity Of Voice, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Feminist Lawmaking And Historical Consciousness: Bringing The Past Into The Future, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Mediating Life And Death Decisions, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Nematic Ordering And Microphase Segregation In A Diblock Polymer Liquid-Crystal-Polymer, R. A. Sones, Rolfe G. Petschek

Faculty Scholarship

A theory of nematic ordering and microphase segregation in an incompressible melt of AB diblock copolymers is developed for the case when the A block is a polymer composed of NA monomers and the B block is a main-chain liquid crystal polymer composed of NB freely jointed nematogens. Isotropic monomer-nematogen interactions are characterized by a Flory parameter , and anisotropic nematogen-nematogen interactions are characterized by a Maier-Saupe parameter J. Long chains (NA,NB1) in the strong segregation limit (N1, with N=NA+NB) are considered. An approximate free energy of the melt is given for the following segregation morphologies: homogeneous, lamellar, cylindrical micelles, …

Testing Penry And Its Progeny , Deborah W. Denno

Faculty Scholarship

In Penry v. Lynaugh, the United States Supreme Court held that the Texas death penalty statute was applied unconstitutionally because the trial court gave no instructions allowing the jury to “consider and give effect to” the defendant's mitigating evidence of organic brain damage, moderate retardation, and disadvantaged background. The Court considered these mitigating factors relevant because of society's steadfast belief in the lesser culpability of defendants whose criminal acts are due to a disadvantaged background, or to emotional and mental disorders. The jury must have full consideration of such evidence in order to give its “reasoned moral response” to the …

We The Exceptional American People, James E. Fleming

Faculty Scholarship

I. INTRODUCTION: "AMERICAN EXCEPTIONALISM" There is an academic movement afoot-one with a long historical pedigree-to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.2 He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).3 Only dualists have the "strength" to declare our American independence from British …

Margaret Somerville: A Refreshing Challenge, George J. Annas

Faculty Scholarship

Health law is applied law, the entire body of law applied to the promotion of human health and the delivery of medical care. It is accurate, if not flattering, to observe that the vast majority of health law teachers and practitioners are content to take their "applied" discipline as they find it, and spend most of their time and energy describing the intersections of law, medicine, and health care as they occur in the world around us. Margaret Somerville is a refreshing challenge to health law's self-satisfied and confining activities, and it has been invigorating to be her friend and …

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

Something Old, Something New: The Challenge Of Tuberculosis Control In The Age Of Aids, Karen H. Rothenberg, Elizabeth C. Lovoy

Faculty Scholarship

No abstract provided.

Patients' Rights After Health Care Reform: Who Decides What Is Medically Necessary?, Wendy K. Mariner

Faculty Scholarship

President Clinton's Health Security Act entitles individuals not to unlimited health care, but to a package of defined insurance benefits with specific exclusions and limitations. Like virtually all reform proposals, it would limit covered benefits to services that are medically necessary. If health reform is to control costs, not all medically necessary care can be covered. In the absence of a generally accepted definition of medical necessity, many services will not be guaranteed to all patients unless they are explicitly covered in the federal legislation or regulations. Without a federal definition of medical necessity or regulations listing covered services, health …

Enforcing Coasian Bribes For Non-Price Benefits: A New Role For Restitution, Wendy J. Gordon, Tamar Frankel

Faculty Scholarship

In Boomer v. Muir,¹ a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them.²

In many states, a supplier in the subcontractor's position has among her options the choice of "rescission and restitution."³ That means the supplier may rescind the contract and seek, under the label of "restitution", payment set at market price (or at her cost)⁴ for …

Patients' Rights To Care Under Clinton's Health Security Act: The Structure Of Reform, Wendy K. Mariner

Faculty Scholarship

Like most reform proposals, President Clinton's proposed Health Security Act offers universal access to care but does not significantly alter the nature of patients' legal rights to services. The act would create a system of delegated federal regulation in which the states would act like federal administrative agencies to carry out reform. To achieve uniform, universal coverage, the act would establish a form of mandatory health insurance, with federal law controlling the minimum services to which everyone would be entitled. Because there is no constitutionally protected right to health care and no independent constitutional standard for judging what insurance benefits …

Divorce And Redemption, Alan L. Feld

Faculty Scholarship

The Tax Court and the Ninth Circuit recently took inconsistent positions on the federal income tax treatment of a redemption of closely held stock incident to a divorce. Their differences lie at the intersection of two tax issues long presumed settled, the treatment of transfers of marital property in connection with a divorce and the treatment of the departing and remaining shareholders on redemption of stock in a closely held corporation. The dispute suggests that some adjustment in these areas may be desirable.

Homeotropic, Rub-Free Liquid-Crystal Light Shutter, Karl A. Crandall, Michael R. Fisch, Rolfe G. Petschek, Charles Rosenblatt

Faculty Scholarship

A liquid-crystal light shutter based upon homeotropic orientation has been fabricated, such that no rubbing is required. The device, which is dark in the voltage-off state and transmitting in the voltage-on state, exhibits contrast ratios in excess of 3000:1, with transmission efficiencies of 70% to 95%. Characterization results of one prototype are reported herein.

A World That Won't Stand Still: Enterprise Liability By Private Contract, William M. Sage, James M. Jorling

Faculty Scholarship

The purpose of this article is to help health care providers and insurers create such an approach by explaining the benefits and risks of voluntarily reassigning liability for medical injury along an enterprise liability model, and by outlining the legal and contractual elements that are required to do so successfully.

Radical Resisters, David B. Lyons

Faculty Scholarship

In the early 1840s Henry David Thoreau stopped paying the Massachusetts poll tax. When pressed for payment in 1846, he invited arrest and went to jail. He had wanted to protest his state's complicity in the federal government's support of chattel slavery and its policies towards Native Americans. By the time he delivered his lecture on civil disobedience, in 1848, events had produced another cause. Thoreau also condemned this country's expansionist war against Mexico.

Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel

Faculty Scholarship

Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.¹

This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …

Gestational Surrogacy And The Health Care Provider, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The Maryland Health Care Decisions Act: Achieving The Right Balance?, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Oxygen Abundances In Low Surface Brightness Disk Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

The oxygen abundances in the H II regions of a sample of low surface brightness (LSB) disk galaxies are presented. In general, LSB galaxies are found to be metal poor (Z < 1/3Z⊙). Indeed, some LSB galaxies rival the lowest abundance extragalactic objects known, and this sample greatly increases the number of very low metallicity systems known. These low metallicities indicate that LSB galaxies evolve slowly, forming relatively few stars over a Hubble time. The low metallicities of LSB galaxies occur even though many are comparable in size and mass to the prominent spirals which define the Hubble sequence. As well as being low in surface brightness, these galaxies tend to be isolated. This suggests that surface mass density and environment are more relevant to galaxy evolution than gross size. Despite the low surface brightness of the disks, massive (M > 60 M⊙) stars are inferred to be present and no abnormality of the IMF is indicated. Many low-excitation H II regions exist at low metallicity in LSB galaxies, and the ionization parameter is not tightly correlated with metallicity. However, there does seem to be a significant envelope of maximum ionization at a given metallicity.