Digital Commons Network^™

Civil Litigation And Jura Novit Curia, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Adjudication As A Private Good: A Comment, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Law Books And Legal Publishing In America, 1760-1840, Jenni Parrish

Faculty Scholarship

No abstract provided.

Economic Sanctions Against South Africa?–Lessons From Rhodesia, Joel R. Paul

Faculty Scholarship

No abstract provided.

Letter To Hon. John H. Shenefield, William W. Schwarzer

Faculty Scholarship

No abstract provided.

A Chicken In Every Pot, And Forty-One Channels For Every Television Set, William K.S. Wang

Faculty Scholarship

No abstract provided.

The Denial Of Eleventh Amendment Immunity To Political Subdivisions Of The States: An Unjustified Strain On Federalism, Margreth Barrett

Faculty Scholarship

No abstract provided.

Interstate Venue, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Introduction To Cleary's Presuming And Pleading: An Essay On Juristic Immaturity, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Zoning For The Mentally Ill: A Legislative Mandate, Deborah A. Schmedemann

Faculty Scholarship

Under the aegis of President John Kennedy, Congress first began to concern itself with the needs of the mentally ill over two decades ago. Bills providing for community mental health centers and congregate housing have appeared subsequently to attempt to expedite integration of the mentally ill into community life. These congressional mandates, however, have met with reluctance-if not hostility. While federal law makers have been the champion of deinstitutionalization, they have placed responsibility for implementation of their programs on the state and local levels. There, local governmental authorities have reacted defensively to exclude the mentally ill from their neighborhoods, primarily …

Probabilities And Proof: Can Hla And Blood Group Testing Prove Paternity?, David H. Kaye, Ira Mark Ellman

Faculty Scholarship

Advancing medical technology has produced tests which offer the opportunity to resolve paternity disputes with more accuracy than unaided traditional evidentiary techniques are likely to obtain. Because the biology underlying the statistical evidence in paternity cases offers a wealth of previously unavailable information which is certain to revolutionize the adjudication of paternity suits, but it is important that the courts not become so mesmerized by these new sources of evidence that they neglect to subject them to traditional principles of evidence applicable to all testimony. Additionally, for some time scholars have disagreed on the proper application of a probability formula …

Compromise Provisions Regarding In Rem Procedures, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Taking Supreme Court Opinions Seriously, Henry Paul Monaghan

Faculty Scholarship

Taking Supreme Court opinions seriously emerged as a topic of discussion at a lunch I attended last year with several Supreme Court law clerks. Somehow we came round to a particular three-judge district court case which I confidently opined was "certain" to be reversed on the basis of principles announced in prior opinions. The clerks were models of politeness and circumspection; never once did they even intimate that the judgment would (by divided vote) be affirmed. But shortly after I had announced my views of that case, one of the clerks began to prod me, asking whether I simply took …

Professor Jones And The Constitution, Henry Paul Monaghan

Faculty Scholarship

Professor Harry Jones's elegant and stimulating Waterman lectures begin on a salutary note. Professor Jones rightly reminds us that, first and foremost, a constitution is not exclusively or primarily a limitation on the exercise of political power, but rather is a charter for its exercise. Accordingly, to view the Constitution as "all brakes and no engine" suggests a serious and fundamental myopia, albeit an understandable one given the popular preoccupation with the Supreme Court's role in vindicating guarantees of civil liberty. But that preoccupation, Professor Jones notes, does more than distort the meaning of the Constitution; it ignores an historically …

Proton-Spin-Resonance Relaxation Times Near The Ordering Transition In Nh4cl, Rolfe G. Petschek

Faculty Scholarship

We consider the relaxation time of the NMR line of protons in NH4Cl, near the ordering transition. We show that because of the symmetry of the system, the major contribution to the random fluctuations responsible for the relaxation are due to motions that are not critically slowed. As a consequence we expect the singular behavior of the relaxation rate to be like that of the energy near the critical point.

Torts 1978 Survey Of New York Law: Part Five: Miscellaneous, Michael M. Martin

Faculty Scholarship

The principal torts decisions this Survey year, especially in the products liability area, seemed to leave as many questions unanswered as they resolved. The Court of Appeals held that a noncontracting user's claim for injuries from a defective product sounded in tort for limitations purposes, but the Court did not decide what limitation period would be applicable if a statutory breach of warranty claim were also asserted. The contributory negligence defense to a strict products liability claim was upheld by a reference to the appellate division's opinion in a second-collision case. The analytically suspect "sales"-"service" distinction was reaffirmed in an …

‘Oath-Functions’ And The ‘Oath Process’ In The Civil And Criminal Law Of The Ancient Near East, Donald Magnetti

Faculty Scholarship

No abstract provided.

The Law And Economics Of Vertical Restrictions: A Relational Perspective, Victor P. Goldberg

Faculty Scholarship

Vertical restrictions between franchisors and their dealers have long been a thorny problem in antitrust law. Richard Posner's characterization of the case law as a "fiasco" and a "doctrinal shambles" is echoed by many other commentators. Perhaps partly because of the intellectual confusion in the area, the Supreme Court recently made an apparently sharp change in direction. In Continental T.V., Inc. v. GTE Sylvania Inc. the Court reversed the decade-old Schwinn per se doctrine, holding that at least some vertical restrictions deserve a rule of reason test. Whether this decision will prove a more durable precedent than Schwinn remains …

Measuring Sellers' Damages: The Lost-Profits Puzzle, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

A buyer repudiates a fixed-price contract to purchase goods, and the seller sues for damages. How should a court measure the seller's loss? The answer seems simple: The seller should be awarded damages sufficient to place it in the same economic position it would have enjoyed had the buyer performed the contract. But the seductive conceptual simplicity of the compensation principle disguises substantial practical problems in measuring seller's damages.

Contract law has traditionally minimized measurement difficulties by basing damages in most cases on the difference between the contract price and market value of the repudiated goods. The common law courts …

Probability Theory Meets Res Ipsa Loquitor, David H. Kaye

Faculty Scholarship

Day in and day out, attorneys, judges, and jurors must estimate probabilities. To be sure, we rarely quantify such estimates of probability and almost never adopt the terminology and mathematics of probability theory to resolve matters. Nevertheless, the mathematical theory of probability can be applied to legal problems in various ways. This article uses probability theory normatively in an effort to clarify one aspect of the famous tort doctrine known as res ipsa loquitur. While not urging that jurors be instructed in probability theory or be equipped with microprocessors, it does seek an accurate statement of the res ipsa doctrine …

The French Exequatur Proceeding: The Exorbitant Jurisdictional Rules Of Articles 14 And 15 (Code Civil) As Obstacles To The Enforcement Of Foreign Judgments In France, Thomas E. Carbonneau

Faculty Scholarship

This article examines the jurisdictional problems that might arise when a plaintiff attempts to enforce a foreign judgment in France against a French national or domicilary. The statement of a hypothetical case is followed by a description and analysis of the substantive French Law, as well as the recently enacted EEC Convention on the Enforcement of Judgments. The application of these legal principles to the facts of the hypothetical case demonstrates unequivocally the unbending nationalistic orientation of the jurisprudence: French courts have construed the relevant Code provisions to grant them exclusive jurisdiction to hear matters involving French nationals or domicilaries. …

Implementing A Progressive Consumption Tax, Michael J. Graetz

Faculty Scholarship

Much scholarly debate has been devoted to the theoretical merits of using an individual's consumption expenditures as the basis for measuring ability to pay tax. In this Article, Professor Graetz examines the practical problems of implementing and administering a progressive consumption tax as an alternative to the income tax. He concludes that although a consumption tax is feasible, practical implementation difficulties, together with the political unlikelihood of enacting a tax which is both administratively workable and retains the alleged theoretical advantages of a consumption-based tax, argue against its adoption.

The Implicit Teaching Of Utopian Speculations: Rousseau's Contribution To The Natural Law Tradition, Thomas E. Carbonneau

Faculty Scholarship

This article examines the evolution of natural law theory and Jean-Jacques Rousseau's contribution to it. The thesis that emerges from that examination asserts that the tension between law in its natural and positive forms is endemic to the human condition. If any common ground is to be found between theories of positivistic and natural law, it lies in the realization that natural law doctrine is not gratuitous and subjective optimism nor idealism pure and simple. The fact that natural law doctrine can serve but a role of general guidance, that it is alien to the concrete, positivistic manifestations of law, …

Balzacian Legality, Thomas E. Carbonneau

Faculty Scholarship

The study of law and literature is an area of growing interest to legal scholars in the United States. Honore de Balzac incorporated in his works a panoramic view of the social reality of nineteenth century France. In this context, the fidelity of Balzac's plots and characters to their external models has been well-documented in a number of fields, including sociology, commerce, and finance. In addition to this penchant for realism, however, Balzac laced his novels with an equally evident moral content. This commitment to accuracy and morality also influenced Balzac's novelistic treatment of the law and lawyers.

Balzac's work …

Constitutional Law: Freedom Of The Press And A Reporter's Ability To Gather News, Barbara P. Blumenfeld

Faculty Scholarship

The author notes the Supreme Court should re-evaluate statements regarding a newsperson's right to gather news. By according great weight to a reporter's necessary task of gathering information, the press will have the tools necessary to make publishing meaningful and support the first amendment freedom of the press.

Workers' Compensation Insurance Carrier As Third Party Tortfeasor, Barbara P. Blumenfeld

Faculty Scholarship

At the time workers' compensation was conceived, the theory of liability without fault was a new concept. The original acts were, therefore, drafted cautiously. The statutes had either a limited application or were noncompulsory in nature.20 Although a common law action against an employer was eliminated, the statutes generally preserved some form of action against a third party tortfeasor under the common law.

This case note asks the legislature to revise the Michigan Workers' Compensation Act so to explicitly define the insurer's relationship to the employer insofar as immunity is concerned.

Laetrile: The Battle Moves Into The Courtroom, Robert L. Schwartz

Faculty Scholarship

Controversy over the supposed cancer-curing drug laetrile continues to rage. Now it's up to the courts. substance that was used by ancient Greek physicians, has been available in the United States, legally or illegally, for a quarter of a century. The government's increased efforts to eliminate laetrile "pushing" by what are seen to be profiteering physicians has created a strengthened laetrile lobby that has successfully fought the medical establishment and succeeded in making the drug legal in more than a dozen states. The pro-laetrile lobby an assortment of cancer patients and their families, medical professionals, and conservative politicians -threatens to …

Contractual Agreements To Arbitrate Disputes: Waiver Of The Right To Compel Arbitration, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Adjudication As A Private Good: A Comment, Paul D. Carrington

Faculty Scholarship

Comment on William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. Legal Stud. 235 (1979).

Fairness And Natural Justice In English And South African Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.