Digital Commons Network^™

Preempting Justice Through Binding Arbitration Of Future Disputes: Mere Adhesion Contracts Or A Trap For The Unwary Consumer, Michael Z. Green

Faculty Scholarship

When individual consumers with little or no bargaining power have not consented to particular contractual terms, the use of the courts and judicial interpretations may be the only way to promote justice and allow consumers to protect themselves. Unfortunately, the trend, as established in recent United States Supreme Court decisions, is to apply the deferential standards of enforcement from commercial transactions to situations involving adhesion contracts between an individual consumer and a business entity where equal bargaining power is clearly lacking.

Perhaps the most pervasive example of this trend has been the Supreme Court's zealous enforcement of arbitration clauses under …

Compensation For Takings: How Much Is Just, Glynn S. Lunney Jr

Faculty Scholarship

Once a court has determined that the government has "go[ne] too far" in changing or restricting existing property rights, and that a "taking" has, therefore, occurred, the Fifth Amendment requires that the government provide "just compensation" to the individual whose property it has taken. In defining the measure of compensation mandated by the Constitution, the Supreme Court has consistently explained that an individual is entitled to "a full and exact equivalent" for the taken property, and to be "put in as good [a] position pecuniarily as he would have been if his property had not been taken."

Yet, behind the …

Overcoming Interpretive Formalism: Legislative Reversals Of Judicial Constructions Of Sovereign Immunity Waivers In The Environmental Statutes, Robert V. Percival

Faculty Scholarship

No abstract provided.

Cipollone V. Liggitt Group, Inc., Federal Preemption And The Preservation Of State Common Law Claims (Product Liability), David J. Stout

Faculty Scholarship

In virtually every case involving a defective product you can anticipate the manufacturer or supplier seeking refuge behind the tired refrain "the Government let me do it." At its most basic the doctrine of preemption limits the operation of state law in areas where Congress has intended that federal law be exclusive or controlling.

It is to be hoped that the wave of federal preemption has crested and that the federal courts will, under the specific guidance of Cipollone, be less inclined to look beyond the expressed purpose of Congress to find state common law tort claims preempted.

Second-Order Flexoelectric Effect In Chiral Nematic Liquid Crystals, D. W. Cronin, Rolfe G. Petschek, Eugene M. Terentjev

Faculty Scholarship

A molecular-statistical model for the second-order flexoelectric effect in chiral nematics is developed, accounting for additional chiral terms in the pair intermolecular potential U(1,2). It is shown by symmetry analysis, that there are four independent chiral terms in the flexoelectric polarization, proportional to the square of director gradients, ℘∼λ∇ n∇n. A molecular-statistical theory is developed for the second-order chiral flexoelectric constants λ. Their values, obtained in the mean-field approximation, depend on molecular dimensions, interaction parameters, and the degree of molecular chirality. Possible experimental situations are discussed where this effect can be observed.

The Government Contractor Defense, David J. Stout

Faculty Scholarship

Litigation involving defective products has increasingly become a pre-trial battle to overcome a series of technical defenses that have become a stock part of the manufacturer's defense.

Defendants invariably raise the government contractor defense where the defective product resulted from some governmental involvement in the manufacturing process, no matter how peripheral or superfluous was the government's involvement in that process.

The defense by its nature only applies to design defect cases. A defect in the manufacturing process is not protected by the defense.

Financial Exploitation Of The Elderly, Diane E. Hoffmann, Roger Wolf

Faculty Scholarship

No abstract provided.

The Legal Infrastructure Of Markets: The Role Of Contract And Property Law Essay, Tamar Frankel

Faculty Scholarship

Markets are social institutions that facilitate exchange transactions. Therefore, they require a regime of freedom to exchange-a contract regime. Markets can be made more efficient by reducing the transaction and information costs for market actors. Such a reduction can be effected by standardizing the products exchanged, the terms of the transactions, and the nature of the rights transferred. Information costs can be reduced by publicizing the transactions' and by using the services of intermediaries

Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon

Faculty Scholarship

Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.

A Suggestion For Taxing Social Security Benefits, Alan L. Feld

Faculty Scholarship

Prof. Feld writes a letter to the editor about "The Strange Precision in the Taxation of Social Security Benefits" (Tax Notes, Mar. 29, 1993, p. 1803).

Defining Finality And Appealability By Court Rule: A Comment On Martineau’S Right Problem, Wrong Solution, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Drafting Commercial Law For The New Millennium: Will The Current Process Suffice?, Neil B. Cohen, Barry Zaretsky

Faculty Scholarship

No abstract provided.

Implications Of The Stakeholder Model, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Implications Of The Stakeholder Model, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Temperature Dependent Coordination Effects In Base-Off Adenosyl And Methylcobalamin By X-Ray Edge Spectroscopy, Mark R. Chance

Faculty Scholarship

Examination of the role of base-off cobalamin species (where the 5,6-dimethylbenzimidazole ligand coordinated to cobalt is detached by protonation of the imidazole nitrogen) in differentiation between homolytic and heterolytic cobalt-carbon bond cleavage mechanisms is a primary step in better understanding B12-dependent enzyme catalysis. X-ray absorption edge spectroscopy provides the first direct structural evidence of five-coordination in base-off adenosyl- and base-off methylcobalamin complexes at room temperature. Integration of 1s-3d pre-edge transitions of the base-off species reveals the dependence of coordination number on temperature. Gradual increases in 1s-3d transition intensities, as the temperature is increased from 180 K to 298 K, reflect …

When Courts Refuse To Frame The Law And Others Frame It To Their Will, Susan P. Koniak

Faculty Scholarship

In the aftermath of Kaye, Scholer, Fierman, Hays & Handler's settlement with the government,¹ two versions of the story have emerged. The most popular version features the government actors as villains-villains with new and lethal weapons at their disposal, willing to enforce law that has leapt full grown from their heads like Zeus' child, law of which the rest of the civilized world was unaware. The counterstory, less often told but not without adherents, casts the lawyers of Kaye, Scholer as the villains: unscrupulous and greedy lawyers ready to break any rule, defile any process, twist any truth on …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Faculty Scholarship

The first part of this Comment will present the historical and theological views towards suicide. This background material will be helpful in understanding present-day society's response to the assisted suicide debate by tracing many of the condemnations back through common law development. The second portion of this Comment will focus on the current status of the assisted suicide debate. Although most courts have passed on the issue" and most legislatures do not have laws addressing assisted suicide, there is a great deal of activity shaping the legal future of this topic. This section emphasizes the importance of key nonlegal players …

Choice Of Language In Bilateral Treaties: Fifty Years Of Changing State Practice, John King Gamble, Charlotte Ku

Faculty Scholarship

The language in which treaties are written affects how widely and deeply treaty obligations are understood and, hence, followed.

Of course, many problems arise when the treaty does not have the same meaning in different languages.

The focus of this article is a different aspect of language in treaties--the choice of language or languages as official text or texts of bilateral treaties. Some research has addressed the broader issue of multiple use of languages in international organizations and multilateral treaties, but bilateral treaties have received scant attention. This inattention likely stems from the difficulty of examining the treaty practice of …

Weak Radiative Decay Λ→Nγ And The Radiative Capture Reaction K‾P→∑(1385)Γ, William J. Fickinger, D. K. Robinson

Faculty Scholarship

The branching ratio for the Λ weak radiative decay Λ→nγ has been measured. Three statistically independent results from the same experiment (Brookhaven E811) are reported here. They are combined with a previously published measurement, also from Brookhaven E811, to yield a result of (Λ→nγ)/(Λ→anything)=(1.75±0.15)×10-3, based on 1800 events after background subtraction. This represents a factor of 75 increase in statistics over the previous world total. A comparison with recent theoretical papers shows that no existing model provides a completely satisfactory description of all data on weak radiative decays. A search is also reported for the radiative capture process K-p→Σ(1385)γ at …

Ion-Director Coupling In A Ferroelectric Liquid Crystal, Min-Hua Lu, Charles Rosenblatt, Rolfe G. Petschek

Faculty Scholarship

The coupling between the motion of ionic impurities and the bend-type director distortion in a ferroelectric liquid crystal is examined theoretically. We calculate the relaxation rate of the (fast) director mode to lowest order in the ion concentration. Moreover, we calculate the ratio Kfast(=0)/K(=0), where K() is the amplitude of the temporal autocorrelation function for director fluctuations, is the correlation time, and Kfast() is the corresponding value for the quickly decaying component of this quantity. The ratio, which can be measured in a light-scattering experiment, yields the inverse Debye-Hückel screening length.

The Indivisible Tax Gift, Alan L. Feld

Faculty Scholarship

In Greene v. United States, the District Court for the Southern District of New York recently rewarded (with an income tax refund) the taxpayers' ingenuity in designing a charitable gift. The court did so, however, without discussion of a central issue in the case. Had it considered the nature of the gift more carefully, it might have denied or modified the claimed deduction.

Taming The Asylum Adjudication Process: An Agenda For The Twenty-First Century, Katherine L. Vaughns

Faculty Scholarship

No abstract provided.

The Nonmajoritarian Difficulty: Legislative Deference To The Judiciary, Mark A. Graber

Faculty Scholarship

No abstract provided.

The Impact Of The European Community On Labor Law: Some American Comparisons, Marley S. Weiss

Faculty Scholarship

No abstract provided.

1990 Farm Bill's Inaccessible-Resource Provision Applies To Vehicles, David A. Super

Faculty Scholarship

No abstract provided.

Divorce Obligations And Bankruptcy Discharge: Rethinking The Support/Property Distinction, Jana B. Singer

Faculty Scholarship

The Bankruptcy Code currently divides divorce-related obligations into two categories: awards or agreements in the nature of support are non-dischargeable; obligations arising from property divisions can be discharged in the same manner as ordinary commercial debts. Because recent developments in family law have undermined the support/property distinction and because privately negotiated divorce agreements often fail to distinguish between payments intended to serve as support and those intended to distribute property, the Code's reliance on this classification often leads to confusion and hardship for divorce obligees. In addition, because of the rise of equitable distribution as the dominant method of allocating …

Reflections On The Historical Context Of Section 402a, Oscar S. Gray

Faculty Scholarship

No abstract provided.

Die Eg-Uebernahme-Richtlinie Im Lichte Der Erfahrungen In Den Usa, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Domestic Violence, The Family And The Lawyering Process: Lessons From Studies On Gender Bias In The Courts, Karen Czapanskiy

Faculty Scholarship

No abstract provided.