Digital Commons Network^™

Transnational Law-Making: Assessing The Impact Of The Vienna Convention And The Viability Of Arbitral Adjudication, Thomas E. Carbonneau

Faculty Scholarship

Questions concerning the future orientation of the process are more pressing and demand a definition of the international mission and role of arbitral adjudication. Nations share the perception that national economies are no longer autonomous, that they must function within a larger global framework. The question then becomes not whether a uniform international law of sales is needed, but rather how it is to be achieved. The transnational preeminence that arbitration has gained as a remedial mechanism makes it a likely vehicle for elaborating a common law of international contracts.

This article assesses the impact of the Vienna Convention upon …

Blue-Sky Merit Regulation: Benefit To Investors Or Burden On Commerce?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Validity Of Tests: Caveant Omnes, David H. Kaye

Faculty Scholarship

A great debate swirls about the use of polygraph tests in criminal cases. Similar concerns about individual privacy and freedom arise with proposals and projects involving widespread testing of government employees for drugs and deception. Required diagnostic testing for certain diseases - most notoriously, for AIDS - raises similar concerns. Incorrect conclusions about who has taken illicit drugs, who has AIDS, and who is lying can be devastating. Yet, perfect knowledge is unattainable. Errors are inevitable. Questions of what the tendency is for these tests to err, which measures are appropriate for deciding whether to use a screening test, and …

New Frontiers: The Expansion Of International Criminal Law, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Gray Market Goods: A Lighter Shade Of Black Symposium: The Controversy Over The Importation Of Gray Market Goods: Is A Resolution Forthcoming, Hugh C. Hansen

Faculty Scholarship

If a street vendor offers a famous brand-name product for a substantially lower price than one would expect, the average consumer's initial reaction might be that the product had been stolen or was "hot" - a product of the black market. While such discounted goods might indeed be stolen, sophisticated consumers have come to expect similar discounts in stores and mail-order houses throughout the country on goods not from the black market but rather from the "gray market." These products, naturally enough, are called "gray market goods" or simply "gray goods." Gray goods are brand-name products manufactured abroad which bear …

Insurance Law: Public Policy Permits Insuring Against One's Own Intentional Acts Of Discrimination, Daniel B. Yeager

Faculty Scholarship

No abstract provided.

Medical And Psychotherapy Privileges And Confidentiality: On Giving With One Hand And Removing With The Other, Steven R. Smith

Faculty Scholarship

This Article reviews both the giving and the taking away: the protections afforded to confidentiality by privileges and legal duties, and the way those protections are eroded. The duties of professionals and others to maintain confidences are noted, but testimonial privileges are emphasized. This Article proposes reforms in the way we try to protect confidentiality and suggests that the protection of therapy confidences be dealt with as a coherent whole (privileges and obligations of confidentiality should be dealt with together). Exceptions to privileges should be reduced and narrowed, and federal law should recognize the desirability of a consistent approach to …

Bounds And Beyond: A Need To Reevaluate The Right Of Prison Access To The Courts, Steven D. Hinckley

Faculty Scholarship

The author argues that the 1977 United States Supreme Court decision in Bounds v. Smith insufficiently protects the right of prisoners to represent themselves before the courts by failing to require state and federal correctional facilities to establish and maintain adequately stocked prison law libraries and to provide prisoners with the option to use those libraries as their means of gaining meaningful access to the courts.

Democracy, Autonomy, And Values: Some Thoughts On Religion And Law In Modern America, Frederick Mark Gedicks, Roger Hendrix

Faculty Scholarship

No abstract provided.

The Modern Misunderstanding Of Original Intent, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Wade H. Mccree, Jr., Sara Sun Beale

Faculty Scholarship

No abstract provided.

From The Editor: Reading Legal Research, Richard A. Danner

Faculty Scholarship

No abstract provided.

The Ambiguities Of Pledging Faith, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Assessing The Effects Of Case Characteristics And Settlement Forums On Dispute Outcomes And Compliance, Neil Vidmar

Faculty Scholarship

McEwen and Maiman (1986) have disagreed with my claim that the case characteristic of admitted liability explains more variability in dispute outcome and compliance than whether the case was resolved through a mediation or adjudication forum. Those authors reanalyzed some of my data from an Ontario small claims court and concluded that forum type is the stronger variable. I take issue with them on a number of conceptual and methodological points. In my own reanalysis of the Ontario data I am able to demonstrate statistically that admitted liability is the stronger predictor of outcomes. I also discuss why this should …

In The End, Truth Will Out’...Or Will It?. ‘Merchant Of Venice,’ Act Ii, Scene 2, Donald Magnetti

Faculty Scholarship

No abstract provided.

First Amendment Rights Of Military Personnel: Denying Rights To Those Who Defend Them, Linda Sugin

Faculty Scholarship

No abstract provided.

Book Review, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Some Thoughts On Scholarship For Beginning Teachers, Mary Kay Kane

Faculty Scholarship

No abstract provided.

Legal Fiction, James Boyle

Faculty Scholarship

No abstract provided.

Apartheid And The South African Judiciary, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Consumer Complaints And The Ontario Business Practices Act: An Empirical Study, Neil Vidmar, Joseph Samuels

Faculty Scholarship

No abstract provided.

Book Reviews, George C. Christie

Faculty Scholarship

No abstract provided.

Comparative Dimensions Of Takeover Regulation, Deborah A. Demott

Faculty Scholarship

Systems of corporate law and securities regulation differ considerably amoung jurisdictions. This Article focuses on differences among rules that pertain to corporate takeovers. No jurisdiction's regulation of tender offers, however complex its terms, operates in a legal or economic vacuum. Thus, this Article begins by examining the institutional and economic factors that define the regulatory and transactional climate for tender offer regulation. These factors, in large part, explain why hostile takeover transactions occur in significant numbers in only relatively few countries. Section II surveys information describing the takeover environment in four of those countries- The United States, Great Britain, Candada, …

The Teaching Function Of The First Amendment, Vincent A. Blasi

Faculty Scholarship

In this important book, Professor Bollinger seeks to understand and remedy the inadequacy he perceives in the way our legal culture deals with extremist speech. He argues that the high level of protection the first amendment has been construed to require serves a social function that has not been fully recognized or carefully evaluated. His thesis is that the contemporary social function of the idea of freedom of speech is to help the society develop a general capacity for tolerance, a capacity that determines how we respond to many forms of conduct as well as speech. Once this function is …

The Universal And The Particular In Legal Discourses, George P. Fletcher

Faculty Scholarship

My target in this article is a set of views that I shall call the functionalist perspective of comparative law. Of course, the word "functionalist" stands for a number of different theories. In order to be precise about the view that I oppose, I shall set my sights on the arguments developed in Otto Kahn-Freund's inaugural lecture Comparative Law as an Academic Subject, published two decades ago.

Law And Morality: A Kantian Perspective, George P. Fletcher

Faculty Scholarship

The relationship between law and morality has emerged as the central question in the jurisprudential reflection of our time. Those who call themselves positivists hold with H.L.A. Hart that calling a statute or a judicial decision "law" need not carry any implications about the morality of that statute or decision. Valid laws might be immoral or unjust. Those who resist this reduction of law to valid enactments sometimes argue, with Lon Fuller, that moral acceptability is a necessary condition for holding that a statute is law; or, with Ronald Dworkin, that moral principles supplement valid enactments as components of the …

Better Late Than Never: Publication Of The Decisions From The 1845 Term Of The Republic Of Texas Supreme Court, James Hambleton, David A. Greenblatt

Faculty Scholarship

Two years ago, this column featured the rediscovery of a full year's worth of decisions issued by the Supreme Court of the Republic of Texas that had never been printed. Paulsen & Hambleton, Whatever Happened to 7845? The Missing Decisions of the Texas Supreme Court, 48 Tex. B.J. 830 (1985). Those decisions now have been collected and will appear in the December 1986 issue of the Texas Law Review (The Missing Cases of the Republic, 65 Texas L. Rev. 377 (1986)). Although none of the missing cases are likely to have any direct bearing on the outcome of the Texaco-Pennzoil …

Choice Of Law Outline For Texas Courts, James P. George

Faculty Scholarship

Several recent Texas choice of law cases have misapplied the most-significant-relationship test, the basic Texas choice of law test adopted from the Restatement (Second) of Conflict of Laws. The misapplications (none from the Texas Supreme Court) predominantly turn on the courts' improperly focusing on a single element of the seven-factor most-significant-relationship test, thereby thwarting its function as a balancing test for competing interests. Texas courts are not alone in this misunderstanding of choice of law tests. In recent years most states have moved away from the old rigid choice of law rules--easily applied, but often unfair--to the newer rules based …

Contributions Of Victimization To Delinquency In Inner Cities, Jeffery Fagan, Elizabeth S. Piper, Yu-Teh Cheng

Faculty Scholarship

The relationship between victimization and criminality has been widely cited in recent years. Early thinking and public perceptions about crime intuitively presumed that criminals were distinct from their victims. Crime control policies resulted which promoted the physical separation of victims from predatory offenders through "target hardening" and "defensible space." Such distinctions, however, ignored the empirical evidence on the considerable overlap between offender and victim profiles and distorted the reality of events in which persons are labelled as victims or victimizers based only on the consequences of the event. Given the homogeneous relation between victim and offender, theories of crime that …

Bargaining In The Shadow Of Eminent Domain: Valuing And Apportioning Condemnation Awards Between Landlord And Tenant, Victor P. Goldberg, Thomas W. Merrill, Daniel Unumb

Faculty Scholarship

Who has a constitutionally protected "property" interest when the government condemns land subject to a lease? Is it the landlord? The tenant? Or do both parties have property rights that entitle them to compensation? Further, how should the size of the total condemnation award be determined? Should we value the property rights of the landlord and the tenant separately and sum? Or should we value the entire parcel as if it were an undivided fee simple and apportion the award between the landlord and the tenant? If the condemnation award is based on the value of a fee simple and …