Law Commons^™

Discrimination Cases In The October 2004 Term, Eileen Kaufman

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No abstract provided.

The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein

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No abstract provided.

Everything Lawyers Know About Polygamy Is Wrong, S. Crincoli (Sigman)

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No abstract provided.

From Undermining Child Protection Statutes To Creating Exceptions To Prohibitions Against Racial Discrimination In Public Accommodations: The Unsettling Consequences Of Mischaracterizing The Police Reporting Privilege, Peter Zablotsky

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No abstract provided.

What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

The Wto Agreement On Government Procurement And The Uncitral Model Procurement Law: A View From Outside The Region, John Linarelli

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Two of the most significant efforts to bring municipal procurement institutions up to international standards are the WTO Agreement on Government Procurement (GPA) and the UNCITRAL Model Law on Procurement of Goods, Construction and Services. Though the Model Law has had limited adoptions, it enjoys global influence as a source of norms and practices for good public procurement. The GPA, also reflective of international standards, seems to be on the rise, as more WTO members elect to become GPA contracting parties. This article explores two aspects of these instruments. First, the article explores how the Model Law promotes efficient public …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

Misuse And Abuse Of The Lsat: Making The Case For Alternative Evaluative Efforts And A Redefinition Of Merit, Deobrah W. Post, Phoebe A. Haddon

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No abstract provided.

The Nuremberg Trials And American Jurisprudence: The Decline Of Legal Realism, The Revival Of Natural Law, And The Development Of Legal Process Theory, Rodger D. Citron

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No abstract provided.

Revisiting Austin V. Loral: A Study In Economic Duress, Contract Modification And Framing, Meredith R. Miller

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Austin v. Loral, 29 N.Y.2d 124 (1971), is a favorite among Contracts casebooks because the New York Court of Appeals held that it was a "classic" example of economic duress. It involved Austin, a small gear part manufacturer, who had entered into a subcontract to provide gear parts to Loral, a publicly-traded defense industry supplier. Loral had a contract with the U.S. government to supply radar sets, to be used in the U.S. efforts in Vietnam. Midway through performance of the subcontract, Austin apparently refused to continue to deliver the gear parts unless Loral acceded to certain demands, which included …

Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine

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Of the various movements that have surfaced in American legal theory in recent decades, law and economics has emerged as perhaps the most influential, leading some to characterize it as the dominant contemporary mode of analysis among American legal scholars. In this essay, Levine considers law and economics in the context of a comparative discussion of another prominent intellectual legal movement, the Brisker method of Talmudic analysis, which originated in Eastern Europe in the late nineteenth century and quickly developed into a leading method of theoretical study of Jewish law. The Brisker method takes its name from the city of …

An Introduction To Self-Incrimination In Jewish Law, With Application To The American Legal System: A Psychological And Philosophical Analysis, Samuel J. Levine

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In recent years, American courts and legal scholars have increasingly turned to Jewish legal tradition for insights into various issues confronting the American legal system. Jewish law has provided an alternative model and, at times, a contrast case that some have found particularly helpful in illuminating complex, controversial, and unsettled areas of American law. In light of these developments, this Essay aims to consider the efficacy of drawing on Jewish law to facilitate a more thoughtful analysis of issues in American law, with a specific focus on the issue of self-incrimination. The Essay begins with a brief discussion of the …

A Look At American Legal Practice Through A Perspective Of Jewish Law, Ethics, And Tradition: A Conceptual Overview, Samuel J. Levine

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Levine examines the roles of legislative and judicial bodies, in the context of a discussion of broader principles of legislation in the Jewish legal system. In recent years, American legal scholars have increasingly looked to Jewish law as a model of an alternative legal system that considers many of the issues present in the American legal system. In relation to the roles of legislative and judicial bodies, the Jewish legal system provides a particularly illuminating contrast to the American legal system, in part because in Jewish law, the same authority, the Sanhedrin, or High Court, serves in both a legislative …

In Memoriam: Deborah Hecht, Jeffrey B. Morris

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No abstract provided.

Eating Our Cake And Having It, Too: Why Real Change Is So Difficult In Law Schools, Nancy B. Rapoport

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This essay discusses the experiences of one law school trying to integrate the rankings into its strategic plan. It discusses the intersection of considerations designed to improve the rankings with considerations designed to improve the school as a whole, and it mentions the difficulties inherent in strategic planning in an academic environment.

Fortress In The Sand: The Plural Values Of Client-Centered Representation, Katherine R. Kruse

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This article examines the history, development and theory of the client-centered approach to lawyering, which has become the most prevalent theory of lawyering taught in law school clinics. It examines the basic tenets of client-centered representation as a problem-solving approach and shows how critique and modification of the approach has spawned a diversity of lawyering models that share the basic tenets of client-centered representation but are in tension with its preferred methodology of lawyer neutrality. The article draws on theories of autonomy to help explain this tension, showing that notions of positive freedom support a range of autonomy-enhancing intervention into …

Ricoeur’S Critical Hermeneutics And The Psychotherapeutic Model Of Critical Theory, Francis J. Mootz Iii

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This paper seeks to extend Ricoeur’s acclaimed mediation of the Gadamer-Habermas debate. Freud’s psychoanalytic practice was an important touchstone for the debate, and Ricoeur’s reading of Freud provides a key to his critical intervention in the debate. The emerging postmodern account of psychotherapeutic practice provides a model of the critical hermeneutics that Ricoeur championed. Bringing Ricoeur’s insights to bear on this model, we can advance the questioning spurred by the Gadamer-Habermas debate without pretending to bring closure to the unending conversation of thinking.

Bankruptcy Ethics Issues For Solos And Small Firms, Nancy B. Rapoport

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This chapter, in Corinne Cooper & Catherine E. Vance's book Attorney Liability in Bankruptcy, walks the reader through some of the traditional ethics issues triggered by representing consumers and small businesses. It also addresses some of the ethics issues that the recent Bankruptcy Amendments (BAPCPA) have created.

Assessing The Coverage Carnage: Asbestos Liability And Insurance After Three Decades Of Dispute, Jeffrey W. Stempel

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Often overlooked are the insurance issues related to asbestos and the degree to which the asbestos mass tort has changed the face of liability insurance and liability insurance law. The asbestos mass tort brought insurance coverage litigation into the big leagues of litigation, adjudication, and scholarly examination (although even the most rabid insurance coverage junkie would concede this is not much silver lining to the asbestos cloud). But after 30 years of big-time liability insurance coverage litigation involving asbestos or influenced by asbestos, what is the outcome? My assessment is:

1. Despite their protestations, insurers have not been unfairly treated …

Toward A New Student Insurgency: A Critical Epistolary, Rachel J. Anderson, Marc-Tizoc Gonzalez, Stephen Lee

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Taking the form of an epistolary (a collection of letters), this law review article explores the relationship between law and social change in the context of student activism at the University of California, Berkeley, School of Law (Berkeley Law formerly Boalt). The author’s contribution to this essay examines the simultaneously linear and circular history of social justice activism at Berkeley Law and discusses the relationship between social crises and resurging waves of activism, focusing on student activism in the sphere of legal scholarship.

William Rehnquist, The Separation Of Powers, And The Riddle Of The Sphinx, Jay S. Bybee

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William Rehnquist's tenure on the Supreme Court presents a Sphinx-like riddle for students of the separation of powers: “What animal is that which in the morning goes on four, at noon on two, and in the evening on three feet?” One might well answer: “Rehnquist's separation of powers jurisprudence, as it is a difficult creature to characterize, arguably evolving over time.” In adolescence, it appeared an originalist on all fours, in manhood it walked erect, a Byron White functionalist, and in old age . . . well, perhaps the Sphinx might just devour one after all! Indeed, it is difficult …

Tribute To Adam Milani, Linda H. Edwards, Terry Phelps

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"Whether I shall turn out to be the hero of my own life, or whether that station will be held by anybody else, these pages must show." So muses David Copperfield in the first pages of Dickens' eponymous novel, and these words seem a particularly fitting epigraph for Adam Milani's life. Adam's life took unexpected, even tragic turns that could have left someone with less character overwhelmed, completely victimized. But Adam remained the hero of his own life, down to the last page. This article is a tribute to Adam Milani.

Scholarship By Legal Writing Professors: New Voices In The Legal Academy, Linda H. Edwards, Terrill Pollman

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In this Article, the authors explore the questions of whether legal writing topics are subjects fit for scholarship and whether scholarship on these topics could support promotion and tenure. The authors examine the scholarship of today’s legal writing professors—what they are writing and where it is being published—and they define the term “legal writing topic,” identifying major categories of legal writing scholarship and suggesting criteria for evaluation in this emerging academic area.

The Dictionary And The Man: Garner’S Black’S Law Dictionary, Jeanne Price, Roy M. Mersky

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The 7th and 8th editions of Black's Law Dictionary were the first edited by Bryan Garner. This review of the 8th edition of Black's Law Dictionary focuses on the approach taken by Garner in thoroughly revising the dictionary and places his work in the context of the recent history of legal dictionaries and lexicography.

The Study Of Intellectual Property At The William S. Boyd School Of Law, Mary Lafrance

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This article discusses the intellectual property program at William S. Boyd School of Law.

The Science Of Persuasion: An Initial Exploration, Kathryn M. Stanchi

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The purpose of this Article is to enhance knowledge of effective persuasive legal writing by taking the exploration in a somewhat different direction from the traditional approaches. This Article argues that it is critical for persuasive writers to study the existing social-science data about human decisionmaking. Trial lawyers have taken serious steps to study and probe social science for ideas about how to persuade (or pick) juries. Yet, decades after Jerome Frank reminded us that judges, like juries, are human, appellate lawyers have been slow to follow their trial brethren in the pursuit of scientific data about what persuades people. …

A Negative Proof Of International Law, Peter J. Spiro

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Important legal scholars have launched assaults against both the consequence and legitimacy of international law. These challenges are useful by way of testing international law's theoretical underpinnings, which, in the modern period at least, have never been very secure. With THE LIMITS OF INTERNATIONAL LAW, Jack Goldsmith and Eric Posner have done a service to those who put more faith in international law as a meaningful quantity. Especially in these the field's early renaissance years, understandings of international law should be considerably strengthened by the attack. Though I doubt the authors would thus conceive of their project, THE LIMITS OF …

Protecting Children From The Dark Side Of The Internet, Anne Dupre, John Dayton, Christine Kiracofe

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This article examines the history of judicial and legislative responses to the issue of consumption of pornography and other harmful materials over the Internet by children. The article begins by giving a brief overview of free speech law in the US. Next, summaries of relevant U.S. legislation and corresponding litigation on Internet free speech are given. Highlighted are: 1) the Communications Decency Act (CDA) and the U.S. Supreme Court’s response in Reno v. ACLU; 2) The Child Pornography Prevention Act (CPPA) and Ashcroft v. Free Speech Coalition; 3) the Children’s Internet Protection Act (CIPA) and United States v. American …

If The Train Should Jump The Track ...: Divergent Interpretations Of State And Federal Employment Discrimination Statutes, Alex B. Long

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As interpretational issues surrounding federal employment discrimination statutes have become more complex and controversial, there have arisen more opportunities for parallel state anti-discrimination law to jump the track and take alternative courses. Not surprisingly, when dealing with their own parallel state statutes, a number of state appellate courts in recent years have chosen this course of action. Even where state and federal employment discrimination have not yet taken different paths, the potential for such divergent interpretations of state and federal anti-discrimination law has increased in recent years to the point where we may enter an era not unlike that of …

Share And Share Alike: Increasing Access To Government-Funded Inventions Under The Bayh-Dole Act, Gary Pulsinelli

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The Bayh-Dole Act attempts to utilize the incentives of the patent system to persuade companies to develop inventions arising from government-funded research, allowing recipients of government funding to patent their inventions and then sell or license those patents as they see fit. The Act has, in many respects, succeeded in its goal of getting the results of government-funded research into the hands of industry, but sometimes at the cost of limiting or taxing future research. Thus, commentators have proposed changes to the Act that will help avoid these costs without destroying the benefits. One such proposal would require the National …