Digital Commons Network^™

Downsizing The Right To Petition, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The First Amendment provides that "Congress shall make no law... abridging.., the right of the people.., to petition the Government for a redress of grievances."1 Unlike the First Amendment's speech, press, and religion clauses, this "Petitions Clause" has not spawned an extensive body of case law or academic commentary. The right to petition has been, in many ways, the First Amendment's poor relation.

Physician Unions And The Future Of Competition In The Health Care Sector, William S. Brewbaker Iii

Articles

No abstract provided.

The World Refugee Regime In Crisis: A Failure To Fulfill The Burden-Sharing And Humanitarian Requirements Of The 1951 Refugee Convention, Susan M. Akram

Faculty Scholarship

Professor Musarat-Akram provided several examples which illustrate the crisis of the international refugee regime. Specifically, they illustrate, first, that the protections offered so generously in the language and purpose of the 1951 Refugee Convention⁷ are more European and-Western-centered than ever before.

Second, they illustrate some of the restrictionist policies by which Western and industrialized states have succeeded in confining huge refugee flows to the most impoverished and least developed states in the world.

Third, they illustrate that the initial limitations inherent in the 1951 Refugee Convention have now been exacerbated by state practice which interprets the Convention language and …

Contesting Government's Financial Interest In Drug Cases, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In 1984, the civil asset forfeiture law was amended to allow the U.S. Department of Justice (DOJ) and state law enforcement agencies to retain many of the "drug-related assets" they seize for their own law enforcement purposes. Under this amendment, some local law enforcement agencies have managed to double or triple their appropriated budgets by targeting such assets. As former Attorney General Richard Thornburgh has noted, "it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." The American people, however, …

Codification And Right Answers, Andrew P. Morriss

Faculty Scholarship

Attempting to survey the entire sweep of the nineteenth-century American codification debate is well beyond the scope of this article. Here, I will concentrate on what I view to be the most interesting portion—the debate provoked by draft codes prepared by David Dudley Field for New York during the 1860s. Field's drafts formed the basis for the codes ultimately adopted in Dakota Territory, California, and Montana as well as sparking years of often heated debate in New York.

I concentrate on the debate over the Field Codes, to the exclusion of the successful codifications in Georgia and Louisiana and unsuccessful …

Trends In The Regulation Of Investment Companies And Investment Advisers, Tamar Frankel

Faculty Scholarship

Statutes, rules and enforcement actions are tea leaves we can read to predict future trends of mutual fund regulation. While statutes and rules are specific, the trends they signify are far more speculative. This Essay engages in such speculation to envision the long-term implications of the recent new N- 1A disclosure form, I the plain English Rule,² and the profile. ³ More generally, the Essay speculates on future trends in Securities and Exchange Commission ("Commission") enforcement, and predicts a continued and stronger use of informal enforcement by the Commission.

City Of Boerne V. Flores: Religious Free Exercise Pays A High Price For The Supreme Court's Retaliation On Congress, Elizabeth Trujillo

Faculty Scholarship

The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a person's right to the free exercise of religion. This protection, however, fails to provide a framework with which to reconcile the freedom of religious conduct with the need for government to regulate conduct. All three branches of government, as created in the Constitution, create and refine this framework. Traditionally, the judiciary has been the final interpreter of the Constitution and, in this capacity, has defined the powers of the other branches of government. For example, the Supreme Court has interpreted Congress's …

Adventures In Fire Retardancy, Charles A. Wilkie

Chemistry Faculty Research and Publications

The work of the author's research group on fire retardancy over the past twenty years is reviewed.

Arbitration And Beyond: Avoiding Pitfalls In Drafting Dispute Resolution Clauses In Employment Contracts, Nancy A. Welsh

Faculty Scholarship

Article Extract:

You've just helped a mid-sized company, Allwell Corp., to reach a settlement in an action brought by a disgruntled former employee. The CEO turns to you and says, "Even though I still believe that we didn't do anything wrong, I'm glad this lawsuit is over. I can't believe how much money and time we've wasted in defending ourselves. Now, how can we keep this from happening in the future? I've been reading about companies putting arbitration clauses in all kinds of contracts. I want to know whether we can require our employees to arbitrate and maybe even require …

Private Amici Curiae And The Supreme Court's 1997-1998 Term Employment Law Jurisprudence, Andrew P. Morriss

Faculty Scholarship

The amicus curiae brief has become a common occurrence in today's legal arena, especially with the proliferation of private interest groups that specialize in numerous topics of political and social interest. The substantial increase in the use of amici briefs, however, has sparked criticism concerning both the costs (in effort and resources) associated with filing these griefs and the persuasive effect (or lack thereof) the briefs have on the Court. Much of this criticism arises from the failure of many interest groups to posit "legal" arguments that apply the facts of a given case to the law. Instead, the amici …

Taking Future Claims Seriously: Future Claims And Successor Liability In Bankruptcy, Frederick Tung

Faculty Scholarship

Treatment of contingent tort liabilities when a business is sold presents a particular challenge for corporate and bankruptcy law. In this article, I focus on the precarious position of future tort claimants-those who may be harmed by a manufacturer's defective product after the manufacturer has sold its business and disappeared. By the time the future claimant's injury occurs, she may be left with no means of recovery. While the article focuses primarily on the bankruptcy sale context, a discussion of the nonbankruptcy context provides important background.

In the article, I make two claims. First, I address recent proposals suggesting that …

Miller V. Albright: Problems Of Constitutionalization In Family Law, Katharine B. Silbaugh

Faculty Scholarship

From time to time, the Supreme Court chooses to hear a case addressing a family law issue. The family law cases accepted by the Supreme Court almost always present a constitutional challenge because absent a constitutional question, state law governs family law. Because the Supreme Court controls its docket, it is free to select only those cases that, in the view of the Court, pose particularly challenging issues. On most occasions, the Court chooses only those family law cases that present other, unrelated issues of interest to the Court.

Proceedings Of The 1999 Annual Meeting, Association Of American Law Schools Section On Employment Discrimination Law: Is There A Disconnect Between Eeo Law And The Workplace?, Maria O'Brien, Douglas D. Scherer, James Sharf, Richard Seymour, Paulette Caldwell

Faculty Scholarship

(The following is an edited transcript of the proceedings of the section on Employment Discrimination Law at the AALS Annual Meeting, New Orleans, Louisiana, January 9, 1999.)

DOUGLAS D. SCHERER*: Good morning. The program description asks the question, "Is there a disconnect between existing EEO jurisprudence and the realities of the workplace and workforce of the Twenty-First Century?" Societal disapproval of employment discrimination is reflected in federal EEO laws that have been enacted during the last thirty-six years and in court interpretations of these laws. The goals of these laws are fairly clear. It is less clear how well these …

Possible Solutions: Policy Tools To Achieve Flexibility To Meet New Conditions, Preliminary Thoughts For Coping With Future Droughts, Maria O'Brien

Faculty Scholarship

The following comments are premised on the author's experience with the Middle Rio Grande Conservancy District (Conservancy) in New Mexico and its endeavor to implement a water banking system. Background information about the Conservancy is helpful for an understanding of its efforts at water banking.

Ranking Specialized Law Reviews: A Methodological Critique, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

No abstract provided.

Tricky Magic: Blacks As Immigrants And The Paradox Of Foreignness, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Marquette, Jacques, John Donnelly

History Faculty Research and Publications

No abstract provided.

The Limits Of Social Choice Theory: A Defense Of The Voting Rights Act, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This Article presents a defense to the challenge that social choice theory presents to voting rights. Arrows theorem, the crown jewel of social choice theory, holds that no voting procedure that meets some minimal conditions of democratic fairness can ensure transitive, meaningful outcomes. The theorem provides a powerful argument against the ability of any court to devise objective vote dilution standards. Because such standards are now a necessary element of claims under section 2 of the Voting Rights Act, Arrows theorem may be viewed as a fundamental threat to the viability of all such claims. The defense of voting rights …

Adoption In The Progressive Era: Preserving, Creating, And Re-Creating Families, Joanna L. Grossman, Chris Guthrie

Faculty Journal Articles and Book Chapters

No abstract provided.

Introduction, Wendy J. Gordon

Faculty Scholarship

Ralph Sharp Brown crossed out the "Junior" that followed his name after his father died. In explanation of the hand-altered stationery, he said (if my recollection holds), "I'm the only one left now." Now, after Ralph's death, there may remain no Ralph Sharp Browns. But there are many law teachers who continue to wage the campaign that Ralph made his life work: to save an interdependent society from unnecessary and stagnating restraints on liberty. In the intellectual property area, Ralph sought to teach us that it can be both right and necessary to give individuals the liberty to "reap without …

Preface: Electronic Medical Information: Privacy, Liability And Quality Issues, Frances H. Miller

Faculty Scholarship

This symposium issue explores the timely topic of health care information and information technology, and their impact on health care delivery. The potential for mischief in this area has been the subject of many a dire prediction, but documented instances of negligence or abuse are thus far relatively rare. As information technology becomes more and more sophisticated and pervasive, however, legal problems are increasingly possible-if not probable-and these articles examine a wide range of issues related to the phenomenon.

The Bill Of Rights As An Exclamation Point, Gary S. Lawson

Faculty Scholarship

Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights")' is one of the best law books of the twentieth century. That is not surprising, as it grows out of two of the best law review articles of the twentieth century' and was written by one of the century's premier legal scholars. I have been an unabashed Akhil Amar fan ever since our overlapping law school days more than fifteen years ago, and I am thrilled to have my perspicacity and good judgment vindicated by the publication of this remarkable work.

Taking Notes: Subpoenas And Just Compensation, Gary S. Lawson

Faculty Scholarship

Few cases from the October 1997 Supreme Court term received as much public attention as Swidler & Berlin v United States, which held that the attorney-client privilege survives the death of the client in federal criminal proceedings. If one focuses solely on the issue actually decided in the case, that degree of attention is surprising. The issue had not generated a split among the federal circuits, and there were relatively few decisions-federal or state-squarely on point. The Court's holding was thus unlikely to have a major impact on American law; the paucity of prior case law demonstrates that the question …

The Last Resort: The Use Of Physical Restraints In Medical Emergencies, George J. Annas

Faculty Scholarship

Public awareness of the use of restraints in medicine has been greatly heightened by a five-part investigative series on physical restraints in psychiatric hospitals by the Hartford Courant and reaction to it by Connecticut's U.S. senators, Joseph Lieberman and Christopher Dodd. In October 1998 the Courant 's 50-state survey identified 142 patients who had died while in restraints or seclusion in the past decade, and the total number is probably much higher. The newspaper advocated the need for national standards for the use of restraints, impartial oversight, and accountability “for behavior that is cruel and even criminal.” The use of …

Waste And Longing: The Legal Status Of Placental Blood Banking, George J. Annas

Faculty Scholarship

Waste is not always what it seems. In his Cold War novel Underworld, for example, Don DeLillo explores the multifaceted qualities of waste. “Waste,” he notes, “is the secret history, the underhistory, the way archaeologists dig out the history of early cultures, every sort of bone and broken tool, literally from under the ground.”1 And waste can also be transformed into money:

They are trading garbage in the commodity pits in Chicago. They are making synthetic feces in Dallas. You can sell your testicles to a firm in Russia that will give you four thousand dollars and then remove …

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Thalidomide And The Titanic: Reconstructing The Technology Tragedies Of The Twentieth Century, George J. Annas

Faculty Scholarship

The Titanic has become a metaphor for the disastrous consequences of an unqualified belief in the safety and invincibility of new technology. Similarly, the thalidomide tragedy stands for all of the "monsters" that can be inadvertently or negligently created by modern medicine. Thalidomide, once banned, has returned to the center of controversy with the Food and Drug Administration's (FDA's) announcement that thalidomide will be placed on the market for the treatment of erythema nodosum leprosum, a severe dermatological complication of Hansen's disease. Although this indication is very restricted, thalidomide will be available for off-label uses once it is on the …

Securitization: The Conflict Between Personal And Market Law (Contract And Property), Tamar Frankel

Faculty Scholarship

The road to securitization - transforming debt and loans into securities - is littered with obstacles. These obstacles seem unrelated. Yet, upon reflection, many legal and business problems arising in the securitization process can be traced to one source: the inherent conflict between contract law governing personal relations among creditors and debtors, and property law governing the same relations converted into "commodities" issued or traded in the market among investors. Identical terms can be characterized as contract loans in personal context, and as personal property (securities or bonds) in market context.

Modern Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

Review of Sheldon Goldman, Picking Federal Judges: Lower Court Selection From Roosevelt Through Reagan (1997).

English Ideas On Legal Education In Virginia, William Hamilton Bryson

Law Faculty Publications

In 1700 the only methods of legal education in England and Virginia were apprenticeship to a practising lawyer, either a barrister, a solicitor or a court clerk, and independent reading of law books; most persons seeking active membership in the legal profession did an apprenticeship supplemented by reading and observing the courts in action. In 1700 the inns of court had long since ceased to provide legal instruction, and the universities in England and Virginia had not yet begun to do so. The obvious importance of legal education was, however, not overlooked on either side of the Atlantic Ocean.

Intent, Purpose And Motivation In Constitutional Litigation, Leon Friedman

Hofstra Law Faculty Scholarship

I will discuss the wonderful interrelation between intent, purpose and motivation. I have always loved analyzing the difference between these three concepts in the criminal procedure area. These words are used interchangeably in three different areas of the law and the words mean something different depending upon what area you are talking about.

Let me briefly get the criminal part of it out of the way. We use intent in the criminal law because at that point the key consideration is whether one volitionally wanted to do that which one was accused of doing. Intent in the criminal area is …