Digital Commons Network^™

Fire In The Mountains| Campesino And Natural Resource Manager Perspectives On Agro-Pastoral Burning And Forest Fires In Honduras, Dale Gregory Woitas

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

The Professional Responsibilities Of The Public Official's Lawyer: A Case Study From The Clinton Era, William H. Simon

Faculty Scholarship

No one has sought more persistently to focus our attention on the relation of professional duty and personal integrity than Thomas Shaffer. Shaffer's work is the most powerful defense of integrity in the legal ethics literature, and it offers the most useful set of strategies for vindicating integrity in law practice. This Essay was conceived in the spirit of Shaffer's distinctive preoccupations and commitments, and it is a pleasure to present it in an issue dedicated to him.

The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon

Faculty Scholarship

Literalism is the doctrine that a facially accurate but knowingly deceptive statement does not violate prohibitions of falsehood and misrepresentation. This essay argues that Literalism has had greater legitimacy in professional responsibility than in other areas of law, but that it seems to be in terminal decline. It surveys the arguments for and against Literalism and concludes that its impending demise should be welcomed.

The Fault Of Not Knowing, George P. Fletcher

Faculty Scholarship

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author's view is that this distinction between objective and subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards …

Remembering Gary – And Tort Theory, George P. Fletcher

Faculty Scholarship

Tort theory has had a brief but wondrous history. Los Angeles and the UCLA School of Law lie at the core of that history – much more, I am sure, than is likely to be remembered.

Smart Growth And American Land Use Law, Richard Briffault

Faculty Scholarship

The smart growth movement that emerged in the late 1990's seeks to change the way Americans think about growth, development, and urban planning. From a legal perspective, smart growth directly challenges several fundamental aspects of American land use law.

Substantively, smart growth attacks two goals that have been hallmarks of American land use law for more than three-quarters of a century: (1) decongestion, that is, reducing population density and dispersing residents over wider areas; and (2) the separation of different land uses from each other. Both decongestion and separation of uses were enshrined in the Standard Zoning Enabling Act …

A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg

Faculty Scholarship

In international commodity transactions, intermediary certifiers of quantity and quality play a crucial role. Sometimes they err, and when they do, the aggrieved party can pursue remedies against the counterparty or against the intermediary, either in contract or tort. The remedy against the intermediary has depended, at least in part, on whether the plaintiff was in privity. Even absent privity, the aggrieved party could possibly recover in tort (or perhaps as a third-party beneficiary). So held Cardozo in the leading New York case Glanzer v. Shepard. Section I of this paper reviews the Glanzer litigation, with special emphasis on how …

On The Demise Of Shareholder Primacy ( Or, Murder On The James Trains Express), Eric Talley

Faculty Scholarship

The hypothetical introduced by Vice Chancellor Leo Strine's Essay exposes an important arena of corporate governance where adherence to the traditional norm of "shareholder primacy" is particularly troublesome. In fact, it is hard to find an analogous domain of corporate governance law that is as jarringly discontinuous as that found in the factual circumstances suggested by Strine's hypothetical. Explicitly, the legal scrutiny accorded to managers who resist a hostile acquisition depends critically on whether a court invokes the Revlon doctrine or the Unocal doctrine as the appropriate governing standard. Under the former (and its progeny), shareholder primacy arguments carry …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

Powers Inherent In Sovereignty: Indians, Aliens, Territories, And The Nineteenth Century Origins Of Plenary Power Over Foreign Affairs, Sarah H. Cleveland

Faculty Scholarship

Does the United States have powers inherent in sovereignty? At least since the 1819 decision in McCulloch v. Maryland, conventional wisdom has held that national government is one of limited, enumerated powers and exercises “only the powers granted to it” by the Constitution and those implied powers “necessary and proper” to the exercise of the delegated powers. All powers not delegated to the federal government are reserved to the states and to the people. In the 1936 decision in United States v. Curtiss-Wright Export Corp., however, the Supreme Court asserted that federal authority over foreign relations operated independently …

Book Review Of Louis Menand’S The Metaphysical Club: A Story Of Ideas In America, Edward A. Purcell Jr.

Other Publications

No abstract provided.

War And Our Civil Liberties: Lessons From Lincoln, Stephen A. Newman

Other Publications

No abstract provided.

Equal Protection Victory, Arthur S. Leonard

Other Publications

No abstract provided.

Court Refuses Moot Role, Arthur S. Leonard

Other Publications

No abstract provided.

Book Review Of Richard C. Cortner’S Civil Rights And Public Accommodations: The Heart Of Atlanta Motel And Mcclung Cases, Edward A. Purcell Jr.

Other Publications

No abstract provided.

An Overview: International Human Rights And Mental Disability Law, Michael L. Perlin

Articles & Chapters

No abstract provided.

Privacy And The Post-September 11 Immigration Detainees: The Wrong Way To A Right (And Other Wrongs), Sadiq Reza

Articles & Chapters

No abstract provided.

What's Good Is Bad, What's Bad Is Good, You'll Find Out When You Reach The Top, You're On The Bottom: Are The Americans With Disabilities Act (And Olmstead V. L.C.) Anything More Than 'Idiot Wind', Michael L. Perlin

Articles & Chapters

Mental Disability law is contaminated by "sanism," an irrational prejudice similar to such other irrational prejudices as racism and sexism. The passage of the Americans with Disabilities Act (ADA) - a statute that focused specifically on questions of stereotyping and stigma - appeared at first to offer an opportunity too deal frontally with sanist attitudes and, optimally, to restructure the way that citizens with mental disabilities were dealt with by the remainder of society. However, in its first decade, the ADA did not prove to be a panacea for such persons. The Supreme Court's 1999 decision in Olmstead v. L.C. …

The New Deal ‘Constitutional Revolution’ As An Historical Problem, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Interpreting Indentures: How Disequilibrium Economics And Financial Asset Specificity Support Narrow Interpretation, Houman B. Shadab

Articles & Chapters

No abstract provided.

Cognitive Faculties, Cognitive Processes, And The Holy Spirit In Plantinga's Warrant Series, Andrew Dole

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

A Trilemma For Divine Command Theory, Mark C. Murphy

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Robert Audi, Religious Commitment And Secular Reason, Francis J. Beckwith

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Phillip Cary, Augustine's Invention Of The Inner Self: The Legacy Of A Christian Platonist, Paul J. Griffiths

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Sprawl, Growth Boundaries And The Rehnquist Court, Michael Lewyn

Utah Law Review

UGBs are probably constitutional under Supreme Court Takings Clause precedent for two reasons. First, a UGB will rarely, if ever, cause a complete deprivation of economically beneficial use, and is thus unlikely to be a compensable "total taking" under Lucas and Palazzolo. Second, UGBs will generally not be compensable "partial takings" under the Penn Central balancing test, because they are typically justified by a legitimate state purpose (that of preventing the urbanization of rural areas) and will, if prudently drafted, rarely interfere with landowners' investment-backed expectations.

The Rehnquist Court And The End Of Constitutional Stare Decisis: Casey, Dickerson And The Consequences Of Pragmatic Adjudication, William S. Consovoy

Utah Law Review

In light of the Rehnquist Court's misuse of stare decisis, and the Court's repeated admonitions that stare decisis is a doctrine of policy, not a command, this Article suggests the abrogation of stare decisis from the Supreme Court's analysis of constitutional issues. Policies are designed to foster beneficial outcomes. When stare decisis is viewed in the context of relevant case law, particularly Casey and Dickerson, it is apparent that this haphazard and consequentialist application of stare decisis is not a benefit, but a detriment. Although abandoning stare decisis has consequences, those consequences are administrative and have no impact on the …

Motions For Summary Judgment When Employers Offer Multiple Justifications For Adverse Employment Actions: Why The Exceptions Should Swallow The Rule, Lawrence D. Rosenthal

Utah Law Review

When employers decide that they will terminate or otherwise adversely affect an employee's employment, they are often forced to give some justification for their decisions. Because employers will face legal liability if they are found to have acted in a discriminatory manner, the reasons given to the former employee are of extreme importance. Although the Supreme Court has established numerous rules for analyzing employment discrimination cases, the Court has not yet definitively answered the question of whether a plaintiff can defeat a motion for summary judgment when only presenting evidence that some, but not all, of the proffered reasons for …

Half A Loaf Is Predominant And Superior To None: Class Certification Of Particular Issues Under Rule 23(C)(4)(A), Jon Romberg

Utah Law Review

Mass-produced objects and ideas permeate our lives, as more and more becomes reproducible on a grander scale with decreasing marginal cost.' The world is suffused with a common stream of products and practices that issue from a single corporate or governmental source. Downstream, the wave washes over large groups of people, with a pattern of similar but not identical consequences left in its wake.

Duties Under The Utah Revised Limited Liability Company Act: Analysis Of A Statutory Conflict, Stan Johnson

Utah Law Review

With the enactment in 2001 of the Utah Revised Limited Liability Company Act (URLLCA), Utah businesspeople electing to form LLC's are faced with a difficult conundrum regarding the duties they owe to the company and to each other, and whether they may opt out of or reduce those duties. Although the URLLCA provides statutory duties for members and managers, two of its provisions clearly allow members to opt out of those duties and reduce them according to the terms of the LLC operating agreement.' On the other hand, another provision very specifically states that members may not reduce their statutory …

The Children Must [And The Timorous May] Stay At Home: Hawkins V. Peart, Brian A. Dominic

Utah Law Review

Recreational opportunities are a valuable source of income, tourism, and excitement in Utah. However, those who provide these activities often have difficulty securing reasonable and affordable liability insurance, and thus often require preactivity waivers of liability from their customers, both adults and children. This Note examines the Utah Supreme Court's recent decision in Hawkins v. Peart, in which the court invalidated a parent's preactivity release of liability on behalf of her child and an indemnity provision in a contract with a trail riding company. Parts II through V of this Note review the court's decision and analysis. Part VI analyzes …