Digital Commons Network^™

Bridging The Gap In Forum Selection: Harmonizing Arbitration And Court Selection, William W. Park

Faculty Scholarship

More than one thoughtful international business manager has been haunted by the fear that foreign judges might not always respect Moses' admonition to impartiality., Concern that the other side will have an unfair advantage in its home court has often driven lawyers to include in international contracts one of two forum selection devices:2 an arbitration agreement entrusting the controversy to a private decision-maker or a courtselection clause granting adjudicatory power to courts at a designated location.3 Both mechanisms can enhance political and procedural neutrality, thereby facilitating business ventures when parties have a mutual mistrust of each other's courts and a …

Defending The Middle Way: Intermediate Scrutiny As Judicial Minimalism, Jay D. Wexler

Faculty Scholarship

In the last few years, Court-watchers have been particularly busy critiquing the constitutional decisions of the splintered Rehnquist Court. Two of the recurring critiques have posited that the Justices are overly activist and that their opinions are needlessly confusing. American Lawyer's Stuart Taylor, for example, has decried both the "jurisprudential mess" of the Court's recent redistricting decisions' as well as the disturbing activism that Taylor believes marks each of the Equal Protection decisions of the 1995-96 Terman activism that has led him to wonder "whether there is any life at all left in the idea of judicial restraint."' Eva Rodriguez …

Experimental Study Of Performance Of Minimum Spanning Tree Algorithms, Alec Berenbaum

Theses

Throughout the study of various theories of algorithms much work has been done in the area of traversal and solving optimization problems on graphs. Some of this work includes studies of finding the Minimal-Cost Spanning Trees (MST) in directed and undirected connected graphs. Several algorithms have been developed for such task. These algorithms tend to differ in performance based on various factors, such as graph density, size of problem spaces, range of weights that can be assigned to the edges of the graphs, edge weight distributions, etc. The data structures used by an algorithm can have a significant impact on …

The American Bar Association And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

The ABA explains its proposed moratorium on capital punishment in part on the ground that recent decisions rendered by the Supreme Court and legislation enacted by Congress limit the ability of prisoners under sentence of death to challenge their sentences in the federal courts.' According to the ABA, the Supreme Court has placed numerous hurdles in the path of prisoners who apply to the federal courts for a writ of habeas corpus, claiming that their convictions were obtained or their sentences were imposed in violation of federal law. Congress, for its part, has added even more barriers in Title I …

Section 1983 Litigation, Martin A. Schwartz, George C. Pratt

Scholarly Works

No abstract provided.

Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz

Scholarly Works

No abstract provided.

Fragments On The Deathwatch, Louise Harmon

Scholarly Works

No abstract provided.

Development Of A Test Method To Determine The Relative Barrier Performance Of Polymeric Films To Flavor Loss Of Methyl Salicylate, Russell Wright

Theses

The increased use of polymer films to package a wide range of flavor compounds in various products creates a problem in trying to recommend appropriate materials. There is a need to identify tools that enable the engineer to simplify the selection process through ranking the relative adsorption of such compounds with different polymer films. The study of one such compound, Methyl Salicylate, was conducted for polymer films representing commodity and engineering barrier films. The films tested were Polypropylene, Polyethylene Terephthalate, Polyethylene Napthalate, Aclar, and Liquid Crystal Polymer. The testing was conducted with a Thermogravimetric Analyzer to determine the relative amount …

Stumbling Toward Equity: The Role Of Government In Kidney Transplantation, Laura Dooley, Robert Gaston

Scholarly Works

No abstract provided.

Resurrecting The Dodo: The Unfortunate Re-Emergence Of The Puffery Defense In Private Securities Actions, Jennifer O'Hare

Faculty Publications

The conventional wisdom is that the puffery defense is inapplicable in securities regulation. However, appellate courts in almost every federal circuit have recently used the puffery defense to dismiss private securities fraud actions that were based on vague statements of corporate optimism. This Article demonstrates that the courts have misused the puffery defense and have improperly insulated companies from liability for their misrepresentations. It contends that the assumptions justifying the use of the puffery defense are not present in securities transactions and that the federal securities laws have expressly rejected the very doctrine underlying the puffery defense-caveat emptor. Arguing that …

Functus Officio: Does The Doctrine Apply In Labor Arbitration - Teamsters Local 312 V. Matlack, Inc., Amy Markel

Journal of Dispute Resolution

The doctrine of functus officio was developed at common law in response to concerns about the "solemnity of judgments" and the effect of outside influences on arbitrators' decisions.2 Although not strictly applied in arbitration that is conducted pursuant to the Labor Management Relations Act,3 the doctrine of functus officio prevents an arbitrator from vacating, modifying, supplementing, or correcting his award . Most courts recognize three narrow exceptions to the doctrine which allow an arbitrator to revisit his award under limited circumstances. This Note examines the application of the "clarification exception" to the doctrine in a labor dispute setting and outlines …

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Restoring Faith In The Attorney/Client Relationship: Alaska's Mandatory Fee Arbitration - A. Fred Miller, Attorneys At Law, P.C. V. Purvis, Byron D. Brown

Journal of Dispute Resolution

Arbitration is an effective method of alternative dispute resolution (ADR) in resolving a disagreement between an attorney and client over legal fees. The arbitration proceeding offers benefits for both lawyers and clients. Attorneys avoid having to sue a former client for a delinquent bill and face the very real possibility of a malpractice counterclaim. The client, on the other hand, avoids the aggravation of retaining another counsel to defend the suit. Mandatory fee arbitration, as established by the Alaska Supreme Court, places the decision to submit to arbitration squarely in the client's hands. Once the client chooses arbitration, the attorney …

Qualification Requirements Of Mediators, Norma Jeanne Hill

Journal of Dispute Resolution

As the use of Alternative Dispute Resolution spreads, the question of who is qualified to provide mediation services becomes ever more important. In determining which selection methods to use in choosing qualified mediators for a particular court or program, attention should be paid to the effectiveness of each specific method, the cost to use it, and whether the method unduly discriminates against individuals of different cultural groups or with varying mediation styles. Just like any other selection procedure in the world of employment, a mediator qualification requirement ought to be analyzed in terms of effectiveness, cost, and discriminatory effects before …

Between The Peaceful Enlightenment Of Heaven And The Revolutionary Dark Side Of Hell, Herminio J. Rodriguez

Theses

Not included.

Human Cloning: A Choice Or An Echo, George J. Annas

Faculty Scholarship

The chant is "cloning, cloning, cloning"; but the echo is "choice, choice, choice." From all the hoopla about human cloning as a human choice it would seem that cloning must be the most important scientific issue of our age. My intent in this Commentary is not to join this chorus, but to take advantage of cloning's high visibility to explore the nature of the choice it offers. What is it that makes human cloning at once so appealing to a few and so repulsive to most? The answer, I think, can be found in Roman mythology: Cloning recalls Ovid's myth …

A National Bill Of Patients' Rights, George J. Annas

Faculty Scholarship

In one of the most enthusiastically received proposals in his January State of the Union address, President Bill Clinton called on Congress to enact a national bill of rights in health care. The President said, “You have the right to know all your medical options, not just the cheapest. You have the right to choose the doctor you want for the care you need. You have the right to emergency room care, wherever and whenever you need it. You have the right to keep your medical records confidential.”

Protecting Patients From Discrimination: The Americans With Disabilities Act And Hiv Infection, George J. Annas

Faculty Scholarship

The Americans with Disabilities Act (ADA) was passed in 1990 to expand the reach of the Rehabilitation Act of 1973 and make discrimination on the basis of disability unlawful. The wheelchair symbol has become a universal sign of disability, but there are, of course, many types of disability that have been the basis of discrimination over the years, including blindness, deafness, epilepsy, cancer, heart disease, and mental retardation. AIDS is a disability under the ADA, and most commentators have assumed that infection with the human immunodeficiency virus (HIV) also qualifies as a disability under this act. It was not, however, …

Partial-Birth Abortion, Congress, And The Constitution, George J. Annas

Faculty Scholarship

The political debate over abortion during the past 25 years has shifted among various dichotomous views of the world: life versus choice, fetus versus woman, fetus versus baby, constitutional right versus states' rights, government versus physician, physician and patient versus state legislature. Hundreds of statutes and almost two dozen Supreme Court decisions on abortion later, the core aspects of Roe v. Wade, 1 the most controversial health-related decision by the Court ever, remain substantially the same as they were in 1973. Attempts to overturn Roe in both the courtroom and the legislature have failed. Pregnant women still have a constitutional …

Protecting Soldiers From Friendly Fire: The Consent Requirement For Using Investigational Drugs And Vaccines In Combat, George J. Annas

Faculty Scholarship

In 1990, following Iraq's invasion of Kuwait, the Department of Defense (DOD) sought a waiver of the informed consent requirements of existing human experimentation regulations from the Food and Drug Administration (FDA). With this waiver, DOD could authorize military use of investigational drugs and vaccines on soldiers involved in the Gulf War without their informed consent. The basis of the waiver request was military expediency. In DOD's words: "In all peace time applications, we believe strongly in informed consent and ethical foundations... but military combat is different." DOD's rationale was that informed consent under combat conditions was "not feasible" because …

Human Rights And Health - The Universal Declaration Of Human Rights At 50, George J. Annas

Faculty Scholarship

War, famine, pestilence, and poverty have had obvious and devastating effects on health throughout human history. In recent times, human rights have come to be viewed as essential to freedom and individual development. But it is only since the end of World War II that the link between human rights and these causes of disease and death has been recognized.1-3 The 50th anniversary of the Universal Declaration of Human Rights — signed on December 10, 1948 — provides an opportunity to review its genesis, to explore the contemporary link between health and human rights, and to develop effective human-rights …

Human Rights And Maternal-Fetal Hiv Transmission Prevention Trials In Africa, George J. Annas, Michael A. Grodin

Faculty Scholarship

The human rights issues raised by the conduct of maternal-fetal human immunodeficiency virus transmission trials in Africa are not unique to either acquired immunodeficiency syndrome or Africa, but public discussion of these trials presents an opportunity for the United States and other wealthy nations to take the rights and welfare of impoverished populations seriously. The central issue at stake when developed countries perform research on subjects in developing countries is exploitation. The only way to prevent exploitation of a research population is to insist not only that informed consent be obtained but also that, should an intervention be proven beneficial, …

The Shadowlands: Secrets, Lies, And Assisted Reproduction, George J. Annas

Faculty Scholarship

Americans love babies and technology, and most Americans applaud the ability of the new assisted-reproduction techniques to help infertile couples have children. But these techniques have also given birth to a wide variety of new legal issues, including questions about the identity of the mother and father of the child, the enforcement of preconception contracts, the elements of informed consent, and the disposition of frozen embryos. After almost 20 years of experience and the growth of infertility clinics into a multibillion-dollar industry, it is time to consider establishing national standards and a federal regulatory scheme. Two recent court cases, one …

Cross-Border Securitization: Without Law, But Not Lawless, Tamar Frankel

Faculty Scholarship

The Article discusses two puzzles posed by cross-border securitization.

First, why do the innovators in this area "give away" their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from "giving away" their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a "law merchant," which is later incorporated into domestic laws. In fact, …

On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief

Faculty Scholarship

It was made clear long ago that property and value are different things. Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically the holders demand (1) a liberty …

Defining The Limits Of Free-Riding In Cyberspace: Trademark Liability For Metatagging, Maureen A. O'Rourke

Faculty Scholarship

The Internet has the potential to revolutionize global communication, offering a relatively low-cost means for information exchange. Since its inception as a research network, the Internet has developed into a "a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services."' The World Wide Web ("Web"), a tool which helps to organize the enormous amount of information available on the Internet, has been a catalyst in the Internet's emergence as a viable commercial marketplace.

Arbitration In Banking And Finance, William W. Park

Faculty Scholarship

The world's bifurcation into debtors and creditors has created yet another class of people: those involved in resolving disputes between lenders and borrowers. To promote reliability in financial dispute resolution, credit agreements have generally provided that potential controversies will be submitted either to courts in the bank's home jurisdiction, or to courts of a major money center such as London or New York.

Managing Legal Change: The Transformation Of Establishment Clause Law, Hugh Baxter

Faculty Scholarship

One perspective on the Supreme Court is to see it as a manager of legal change. At a particular time, and with respect to a particular issue of federal law, a majority of Justices may coalesce around a law-transforming project. Because the Court enjoys nearly complete control over its docket, such a coalition of Justices may select carefully the cases most advantageous to the law -transforming project. And because the Court's pronouncements on matters of federal law are binding on all other interpreters, the Court may enforce its legal transformation by exercising its disciplinary powers of review. The Court's implementation …

Labor Law Obstacles To The Collective Negotiation And Implementation Of Employee Stock Ownership Plans: A Response To Henry Hansmann And Other "Survivalists", Jeffrey M. Hirsch

Faculty Publications

No abstract provided.

Foreigners In Their Own Land: Cultural Land And Transnational Corporations---Emergent International Rights And Wrongs, Martin A. Geer

Scholarly Works

Unique and vital components of human culture and the environment are struggling for survival in the Amazon River basin. The rain forest of Amazonia is shared by indigenous peoples and an immensely diverse tropical flora and fauna. This unique culture and physical ecology, however, is threatened by transnational oil corporations which are irreparably devastating Amazonia and its native cultures through oil production activities.

The failure of public international law to address the post World War II emergence of transnational corporations (TNCs) as a major international force has been the subject of significant review by scholars and policy makers. TNCs, often …