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Relations Between Lawyer And Client In Damages: Model, Typical, Or Dysfunctional, Rodney J. Uphoff

Journal of Dispute Resolution

This essay begins, therefore, by briefly examining the question of what constitutes good lawyering. The essay acknowledges the difficulty of defining precisely what is good lawyering. In fact, scholar, judges, and lawyers often disagree markedly when they characterize lawyer behavior using the term. Not surprising, then, even though academic commentators routinely trumpet the importance of establishing a meaningful attorney-client relationship as an important aspect of good lawyering, not all in the legal profession embrace that view.

Experiences Of Collaborative Law: Preliminary Results From The Collaborative Lawyering Research Project, Julie Macfarlane

Journal of Dispute Resolution

For more than two decades, some of the most respected scholars in the field of dispute resolution have questioned the apparently intrinsic bias of litigation against cooperative, problem-solving outcomes for clients. The continuing discussion focuses on the increasingly adversarial and "uncivil" character of much civil litigation, especially commercial litigation;' the abuse of discovery practices to extend and escalate conflict and costs; the pressure to compete rather than to cooperate when facing the uncertainty of the other side's next move (the classic prisoner's dilemma described by Mnookin and Gilson); an observed tendency towards a reduction of counseling and "deliberative wisdom" provided …

Assessing Mediator Performance: The Usefulness Of Participant Questionnaires, Roselle L. Wissler, Robert W. Rack Jr.

Journal of Dispute Resolution

As part of their obligation to provide quality services, courts that offer mediation need to periodically assess the performance of mediators to whom they refer cases. One of several methods that have been proposed for monitoring mediator quality is participant assessments of mediator performance. The present article reports an empirical study that examined attorneys' assessments of the skillfulness of mediators in a federal appellate civil medations program. The attorneys rated some of the mediators as being more skillful than others, and these differences generally remained whether or not favorable outcomes were achieved in mediation. In addition, the attorneys rated individual …

Going Dutch: Should Employees Have To Split The Costs Of Arbitration In Disputes Arising From Mandatory Employment Arbitration Agreements - Morrison V. Circuit City Stores, Inc., John F. Crawford

Journal of Dispute Resolution

Employers often require their employees to sign arbitration agreements as a condition of employment, obligating employees to submit their disputes with employers to binding arbitration. These agreements may include terms, such as cost splitting provisions, that may be advantageous to the employer, but extremely limiting to an employee seeking to enforce her statutory rights. The United States Supreme Court has yet to set out a clear position about whether an employee, by signed agreement, can be required to pay all or part of the arbitration fees and costs when the employee submits a statutory claim to arbitration. Federal district courts …

Securities Arbitration Awards Of Punitive Damages: Protective Or Expansive Steps For Review - Sawtelle V. Waddell & (And) Reed, Inc., Andrew Kopp

Journal of Dispute Resolution

An award of punitive damages is often the most significant and detrimental part of an award arising from a judicial or arbitral proceeding. In 1995, the United States Supreme Court resolved a circuit split upholding an arbitral panel's authority to award punitive damages under a securities arbitration agreement. This decision was monumental in establishing arbitral power. However, it left several questions unanswered. For example, which, if any, standards should be applied to such awards? This casenote addresses the reviewability of punitive damages awards arising out of a securities arbitration hearing.

Sovereign Debt Reform And The Best Interest Of Creditors, William W. Bratton, G. Mitu Gulati

Vanderbilt Law Review

This Article is about boilerplate language located at the back of contracts drafted by the world's largest law firms. The clauses in question are process provisions that regulate the amendment of sovereign debt contracts. These paragraphs have been drafted and redrafted by generations of corporate lawyers, yet they have changed little in their broad outlines in more than a century of use. Now they take center stage in the global financial arena, where they govern billions of dollars (and pounds, euros, and yen) of sovereign debt in default and billions more in imminent risk of default. Officials, academics, and even …

Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals That Some Federal Courts Manipulate Standing Rules To Promulgate Severe First Amendment Restrictions On The Spouses And Children Of Public Employees, Nicholas R. Farrell

Vanderbilt Law Review

Federal courts in the United States have consistently upheld the constitutional doctrine that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." Given the central role of government workers in maintaining that order, the First Amendment rights of public employees have been particularly susceptible to restriction. For example, in 1940, Congress enacted the Hatch Act, which declared unlawful certain political activities of federal employees. Specifically, section nine of the Act prohibited officers and employees in the executive branch …

The Pharmacokinetics Of Nebulized Nanocrystal Budesonide Suspension In Healthy Volunteers., Walter Kraft, Barry Steiger, Don Beussink, John N. Quiring, Nancy Fitzgerald, Howard E. Greenberg, Scott A. Waldman

Department of Medicine Faculty Papers

Nanocrystal budesonide (nanobudesonide) is a suspension for nebulization in patients with steroid-responsive pulmonary diseases such as asthma. The pharmacokinetics and safety of the product were compared to those of Pulmicort Respules. Sixteen healthy volunteers were administered nanobudesonide 0.5 and 1.0 mg, Pulmicort Respules 0.5 mg, and placebo in a four-way, randomized crossover design. All nebulized formulations were well tolerated, with no evidence of bronchospasm. Nebulization times were significantly shorter for nanobudesonide compared to Pulmicort Respules. Because of a low oral bioavailability, plasma concentration of budesonide is a good marker of lung-delivered dose. The pharmacokinetics of nanobudesonide 0.5 and 1.0 mg …

Running Head: Trademark Law And Keyword Advertising, Elizabeth Warner

Theses

The growth of the Internet as a commercial medium has brought about new concerns in terms of the future of intellectual property law. The newest form of advertising, keyword advertising, has created much controversy within the legal system. In the latest case, Google, Inc. v. American Wallpaper and Blind Factory, Google has requested that courts make a decision as to what constitutes infringement in terms of the sale of keywords for advertising on the Internet. The case is still in pending process. Through an economic analysis of trademarks and advertising on the Internet, this paper seeks to demonstrate that the …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law deciding the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence," that category of evidence that purports to illustrate other evidence rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional …

Forcible Medication For Courtroom Competence: The Case Of Charles Sell, George J. Annas

Faculty Scholarship

The right to refuse treatment is firmly recognized in U.S. law. Competent persons have the legal right to refuse treatment, even life-sustaining treatment, and incompetent patients can also refuse treatment through an advance directive, by naming a health care agent to make decisions for them or by having a person who knows their wishes express them.

American Bioethics And Human Rights: The End Of All Our Exploring, George J. Annas

Faculty Scholarship

In his compelling novel Blindness, José Saramago tells us about victims stricken by a contagious form of blindness who were quarantined and came to see themselves as pigs, dogs, and “lame crabs.” Of course, they were all human beings - although unable to perceive themselves, or others, as members of the human community. The disciplines of bioethics, health law, and human rights are likewise all members of the broad human rights community, although at times none of them may be able to see the homologies, even when responding to a specific health challenge.

The boundaries between bioethics, health law, and …

Politics, Morals And Embryos, George J. Annas, Sherman Elias

Faculty Scholarship

Bioethics in the United States reflects US culture and tends to be pragmatic, market-oriented and insular. Add embryo politics to this mix and, over the past few years, the result has been a bioethics that has become so narrow and selfabsorbed as to be virtually irrelevant to the rest of the world. Not all the blame for this can be placed on President George W. Bush’s political agenda for his President’s Council on Bioethics, now in its third year of operation, but much can. The council has made public bioethics the servant of politics by pursuing a narrow, embryo-centric agenda. …

The Abcs Of Global Governance Of Embryonic Stem Cell Research: Arbitrage, Bioethics And Cloning, George J. Annas

Faculty Scholarship

Symposium: Stem Cell Research and Human Cloning: Where Do We Draw the Line: Symposium Transactions

Thank you for that introduction, which reminds me that I used to do regulatory work for the Commonwealth of Massachusetts, primarily as a member of the Board of Registration in Medicine, and we had real regulations, real law, that could be enforced. What I am going to talk about today is not "fake law," but a kind of law that is often seen as more like ethics-international law. There is really no such thing as global bioethics governance, but I would like to think that …

Reparations And Equal Opportunity, David B. Lyons

Faculty Scholarship

This paper offers a sympathetic interpretation of reparations claims made on behalf of African Americans and suggests how they could properly be honored. It reviews the federal government’s role in supporting racial subordination and its continuing failure to address the inequitable consequences, which public policy now largely ignores. It sketches a national rectification project, comprising a comprehensive set of public programs that would attack the persisting legacy of slavery and Jim Crow. The programs can be justified by the government’s duty to insure equal opportunity for our society’s children and, most urgently, by corrective justice, because the inequities are attributable …

A Framework For Reparations Claims, Keith N. Hylton

Faculty Scholarship

These remarks, prepared for the Boston College Third World Law Journal Reparations Symposium, compare the goals and viability of reparations claims as tort suits. I contrast two approaches observed in the claims: a "doing justice" model, which involves seeking compensation in important cases of uncorrected uncompensated injustice, and a "social welfare" model that seeks to change the distribution of wealth. Claims under the first category are far more consistent with tort doctrine and likely to meet their goals than social welfare-based claims.

Extremely Preterm Birth And Parental Authority To Refuse Treatment: The Case Of Sidney Miller, George J. Annas

Faculty Scholarship

Disputes between physicians and patients over medical care have tended toward resolution in both the courts and ethics committees, with each of these bodies ultimately deciding that the informed, competent patient must be the final decision maker. Parents, too, have the authority to make medical decisions for their children, but these decisions can be challenged if physicians do not believe they are medically reasonable. One bioethical issue, however, is as intractable today as it was 30 years ago, when it began to be publicly discussed: the extent of parental authority to refuse life-sustaining medical treatment for an extremely premature infant. …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as “demonstrative evidence,” evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

Slavery And Tort Law, Keith N. Hylton

Faculty Scholarship

This paper evaluates the claim for slavery reparations from a torts perspective. I start with an examination of the injuries inflicted on slaves, and the extent to which tort law provides a vehicle for redressing these injuries. I then take up the question of derivative claims, claims brought by someone other than the direct victim, a category which covers the reparations complaint. Lastly, I discuss the accounting demand by the reparations plaintiffs. The derivative status of reparations claims presents special obstacles for plaintiffs. However, applying today's law to slavery should be viewed as bringing law to a regime from which …

The Merchandising Right: Fragile Theory Or Fait Accompli?, Stacey Dogan

Faculty Scholarship

Trademark merchandising is big business. One marketing consultant estimated the global market for licensing and marketing sports-related merchandise at $17 billion in 2001. With this much money at stake, it's no surprise that trademark holders demand royalties for use of their marks on shirts, key chains, jewelry, and related consumer products. After all, the value of these products comes largely from the allure of thetrademarks, and it seems only fair to reward the party that created that value . . . doesn't it?

It turns out that the answer is more complicated than this intuitive account would predict. Trademark law …

Trademarks And Consumer Search Costs On The Internet, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by …

Be Not Afraid Of Change: Time To Eliminate The Corporate Practice Of Medicine Doctrine, Nicole Huberfeld

Faculty Scholarship

This article argues that the corporate practice of medicine doctrine is a physician-centric, guild type doctrine that is misplaced in the present incarnation of the American healthcare system and that does nothing to improve quality, efficiency, or accountability. The paper focuses on three key reasons that the corporate practice of medicine doctrine should be laid to rest. First, the motives for creating the corporate practice of medicine doctrine are long gone, as physicians have not been able to operate as a guild of autonomous providers of healthcare for quite some time. Second, it is disingenuous to pretend that physicians are …

The Changing World Of Employee Benefits, Maria O'Brien

Faculty Scholarship

When I graduated from law school in 1985, there were no courses offered in employee benefits law. Nor, as near as I can recall, was ERISA ever discussed in any of the labor and employment classes I took. There was no mention in the introductory labor law course or in other classes about employment discrimination, union organizing, and employment arbitration. Now, in contrast, many law schools include a course on employee benefits and ERISA, and students hoping to work in the labor and employment area frequently find that ERISA work is plentiful, and traditional NLRA work is not. This, of …

Can Consumer-Choice Plans Satisfy Patients? Problems With Theory And Practice In Health Insurance Contracts, Wendy K. Mariner

Faculty Scholarship

Much scholarship has considered whether health care - and insurance - should be distributed by voluntary contract or subject to government standards or regulation. Contracts will likely play a key distributive role in any future health care system. Yet we do not fully understand where private contracting does and does not work to further the goals of equitable access to affordable care. This article examines the role of health insurance policies in defining and enforcing access to medical care, focusing on private employment-based group health benefit plans. It describes models of consumer choice health plans and critiques their capacity for …

Negotiating Gender And (Free And Equal) Citizenship: The Place Of Associations, Linda C. Mcclain

Faculty Scholarship

This article focuses on the place of associations within John Rawls's political liberalism and in feminist liberalism. It revisits crucial components of political liberalism in light of feminist criticisms, such as those of Susan Moller Okin and Martha Nussbaum, that political liberalism's protection of associational life hinders women's free and equal citizenship. Offering a different reading of Rawls, it finds greater potential to draw on political liberalism to support such citizenship. It then brings liberal feminist ideas about the place of associations into dialogue with recent feminist work on gender, rights, and culture calling for models of rights within culture …

The Social Insurance Crisis And The Problem Of Collective Saving: A Commentary On Shaviro's Reckless Disregard, David I. Walker

Faculty Scholarship

Long-range Social Security and Medicare spending projections vastly exceed projected program revenues. If left unchecked, the resulting fiscal imbalance (estimated at $40 to $70 trillion in present value terms) would fall primarily on future generations. To avoid generational inequity, and perhaps fiscal meltdown, Professor Daniel N. Shaviro and others propose immediate fiscal austerity. This reply Commentary argues that near-term austerity is unlikely to play a significant role in overcoming the fiscal imbalance, which can be thought of as a balloon payment due mid-twenty-first century. Significant near-term fiscal austerity would eliminate the public debt and replace it with a public surplus. …

Measures Necessary To Ensure: The Icj's Provisional Measures Order In Avena And Other Mexican Nationals, Robert D. Sloane

Faculty Scholarship

This article analyzes the provisional measures order of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals, the first provisional measures order issued by the ICJ after its decision in LaGrand holding that such orders have binding effect. After reviewing the background to Mexico's action, the article focuses on Avena's place in the Court's provisional measures jurisprudence, its international legal significance, its potential effects, if any, on the ICJ's perceived institutional legitimacy and authority, and its legal and political consequences for the United States. In particular, the article examines the domestic legal implications of the Court's order …

The Legally Queer Child, Bruce Macdougall

All Faculty Publications

This article explores the various presumptions and arguments of Canadian courts in largely denying queer children a legal presence. An analysis of the intersection of homosexuality and children is explored with a view to arguing that legally, queer children deserve a voice. The author begins by outlining the development of the legal conceptualization of the "child". This conceptualization led to the notion of the child as innocent, and thus in need of protection. In comparison, homosexuals came to be characterized as "aberrant" and "predatory". Protecting children from homosexuals then became a simple step of logic, which ultimately led to the …

Strengthening Domestic Corporate Activity In Global Capital Markets: A Canadian Perspective On South Africa's Corporate Governance, Janis P. Sarra

All Faculty Publications

As a Canadian corporate law scholar who recently had the opportunity to visit South Africa, I was humbled by both the profound challenges and the immutable positive spirit of the South African people when it comes to thinking about their economic and social future. Hence while this paper is a reflective discussion on the kinds of challenges that exist and the strategies that could be deployed to enhance corporate governance in South Africa, it must be emphasized at the outset that it is for Sub-Saharan African nations to develop their own governance models. They are best positioned to adopt strategies …

Can Congress Use Its War Powers To Protect Military Employees From State Sovereign Immunity?, Jeffrey M. Hirsch

Faculty Publications

No abstract provided.