Law Commons^™

Unraveling The Tangled Web: Choosing The Proper Statute Of Limitation For Breach Of The Implied Covenant Of Good Faith And Fair Dealing, Tyler T. Ochoa, Andrew Wistrich

Faculty Publications

In this article, we first will review the general principles applicable to classification of claims for limitation purposes and the various statutes which could be applied to breach of the implied covenant of good faith and fair dealing. We then will examine cases in which the statute of limitation for breach of the implied covenant of good faith and fair dealing was at issue and analyze what limitation period, rules of accrual and tolling doctrines are appropriate in the absence of contractual modification. Finally, we will analyze the extent to which contractual modification of the limitation period, rules of accrual …

Whoever Fights Monsters Should See To It That In The Process He Does Not Become A Monster: Hunting The Sexual Predator With Silver Bullets -- Federal Rules Of Evidence 413-415 -- And A Stake Through The Heart -- Kansas V. Hendricks, Joelle A. Moreno

Faculty Publications

No abstract provided.

Book Review —The Federal Courts: Challenge And Reform, Roger J. Miner '56

Book Reviews

No abstract provided.

Sacrificing Legislative Integrity An The Altar Of Appropriations Riders: A Constitutional Crisis, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

Dear President Clinton, Carl W. Tobias

Law Faculty Publications

Professor Tobias offers advice on judicial selection philosophy for the newly reelected President Bill Clinton.

Magistrate Judges In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

Over the last three decades, growing caseloads and finite resources have fostered expansion of the jurisdiction, responsibilities, prestige and compensation of United States Magistrate Judges. Passage of the Civil Justice Reform Act (CJRA) of 1990, which required local experimentation with procedures for reducing expense and delay in civil litigation, propelled this development in many of the ninety-four federal districts across the country. The United States District Court for the District of Montana has quite strongly evidenced these phenomena. Perhaps most important, the CJRA expense and delay reduction plan that the district prescribed in 1991 included an opt-out procedure which it …

Right To Talk: Has Justice Antonin Scalia Compromised His Objectivity With A Public Remark?, Lloyd B. Snyder

Law Faculty Articles and Essays

With two assisted suicide cases scheduled for argument before the Supreme Court this term, Justice Antonin Scalia already has publicly staked out his position on the issue. While sentiments he expressed in 1990 in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, are well-known, Scalia told an audience at Catholic University late last year that it is "absolutely plain there is no [constitutional] right to die." Is it proper for sitting judges to make such statements? While no one would deny Scalia his First Amendment right to say what he pleases, that hardly quells concerns about the advisability …

Suggestions For Studying The Federal Appellate System, Carl W. Tobias

Law Faculty Publications

The United States Congress recently authorized the appointment of a Commission on Structural Alternatives for the Federal Courts of Appeals. That entity has an historic opportunity to analyze carefully the federal appellate system and make valuable suggestions for improvement, thereby charting the destiny of the intermediate appeals courts for the twenty-first century. The creation of this new commission is important because now is a critical time for the appellate courts. All twelve regional circuits have experienced exponential docket growth but have possessed insufficient resources to treat the cases: this crisis of volume now seriously threatens the system.

This Article initially …

Judicial Review As A Tool For The Safeguard Of Human Rights: Prospects And Problems Of The U.S. Model In Malawi, Janet Laura Banda

LLM Theses and Essays

Judicial review is a judicial action that involves the review of an inferior legislative or executive act for conformity with a higher legal norm, with the possibility that the inferior norm may be invalidated or suspended if necessary. Although judicial review has been explicitly provided for in some written post-independence African constitutions, such review has not developed into a significant principle of African juridical democracy. This lack of development can be attributed to the emergence of dictatorships in the post-colonial era. However, Malawi’s weak judiciary system was remedied by the 1994 Constitution which gave the Malawian judiciary a central position, …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

The Issue Of The Legal Validity Of Using Economic Sanctions To Enforce Human Rights, Thomas Hailu

LLM Theses and Essays

The international legal regime as it pertains to human rights is neither as established nor as definitive as it appears. It suffers from many disadvantages, the first and most important of which is the fact that the international legal regime has never been capable of effectively enforcing its rules or instituting appropriate remedies for its breaches. Some states have attempted to make up for this inability on behalf of international law by undertaking an enforcement mechanism either unilaterally or multilaterally; economic sanctions are often regarded as valuable tools of enforcement to be used against countries which are allegedly engaged in …

Passion's Progress: Modern Law Reform And The Provocation Defense, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Based on a systematic study of fifteen years of passion murder cases, this article concludes that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bedside confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases the author has studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. …

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.

Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine

Articles

Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …

Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.

Scientific Testing & Proof Of Paternity: Some Controversy And Key Issues For Family Law Counsel, Christopher L. Blakesley

Scholarly Works

Blood and tissue testing, especially DNA matching, have become important elements of both criminal and paternity or maternity litigation. Such scientific testing has become so important that it has taken on aspects that may cause it to benefit or to do harm to the judicial process or to any given case. This article focuses on the value and the dangers surrounding this interesting subject.

The 1995 Louisiana Supreme Court decision in Pace v. State reemphasized the importance of DNA testing generally and the significance of blood and tissue genetic testing used to exclude paternity. The advances in and importance of …

On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley

Scholarly Works

As a general rule, extrinsic evidence, whether written or oral, is not admissible to prove either the intent of the parties to a contract or the meaning of contractual terms when the parties have executed an unambiguous, fully-integrated (i.e., final and all-inclusive) written agreement. The trial court may consider various types of extrinsic evidence, however, in determining whether a particular agreement is fully integrated or ambiguous, and even in choosing among rival interpretations of an agreement where ambiguity is not present. If the trial court determines that an agreement is not fully integrated, then the trier of fact may consider …

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch

All Faculty Scholarship

In this Article, Professor Fisch assesses currrent retroactivity doctrine and proposes a new framework for retroactivity analysis. Current law has failed to reflect the complexity of defining retroactivity and to harmonize the conflicting concerns of efficiency and fairness that animate retroactivity doctrine. By drawing a sharp distinction between adjudication and legislation, the law has also overlooked the similarity of the issues that retroactivity raises in both contexts. Professor Fisch's analysis, influenced by the legal process school, uses an equilibrium approach to connect retroactivity analysis to theories of legal change. Instead of focusing on the nature of the new legal rule, …

What Price Peace: From Nuremberg To Bosnia To The Nobel Peace Prize, Malvina Halberstam

Faculty Articles

No abstract provided.

Congressional Self-Discipline: The Constitutionality Of Supermajority Rules, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Congress needs to be more disciplined. It has at times become sloppy and even cavalier. When, for example, Congress enacted the federal Gun-Free School Zone Act of 1990, it was asking for trouble. Neither the legislation nor the legislative history said anything about any effect on interstate commerce. It was therefore not surprising to see the Supreme Court strike the law down in United States v. Lopez.

Book Review Of Reclaiming The Federal Courts, By Larry W. Yackle., Edward A. Purcell Jr.

Other Publications

No abstract provided.

2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker

Faculty Publications

No abstract provided.

Judicial Review Of Customs Service Actions, Peter M. Gerhart

Faculty Publications

This article is based on a report prepared for the Administrative Conference of the United States in connection with its study of judicial review of actions taken by the U.S. Customs Service. The recommendations herein were adopted in substantially identical form by the Administrative Conference at its September 19, 1977, plenary session. The article examines the present availability and scope if review of administrative decisions of the U.S. Customs Service. The author analyzes the overall operation if the Customs Service, procedures for internal review of Customs ,decisions and for assessment of penalties and other sanctions, and the distribution if jurisdiction …

A Critique Of The Yugoslavia War Crimes Tribunal In Report Of The International Law Association On An International Criminal Court, Michael P. Scharf

Faculty Publications

It is ironic that history has not been altogether kind to the Nuremberg Tribunal, labeling it "victor's justice," denouncing its application of ex post facto law, and rebuking its procedural shortcomings. Fifty years later, the world community has created another war crimes tribunal - the International Criminal Tribunal for the Former Yugoslavia. In its first annual report, this new Tribunal stated that "one can discern in the statute and the rules a conscious effort to avoid some of the often-mentioned flaws of Nuremberg and Tokyo." Because it will serve as the model for future ad hoc tribunals and a permanent …

Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …

Toward A Theory Of Effective Supranational Adjudication, Laurence R. Helfer, Anne-Marie Slaughter

Faculty Scholarship

Supranational adjudication in Europe is a remarkable and surprising success. Europe's two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power …

Critical Applications And Proposals For Improvement Of The Uniform Interstate Family Support Act And The Full Faith And Credit For Child Support Orders Act, Patricia W. Moore

Faculty Articles

The problems inherent in interstate child and spousal support enforcement have been lamented for at least a half century. The federal and state governments have taken numerous steps to enhance interstate establishment and collection of support. Two of the latest steps in this process were the 1992 promulgation of the Uniform Interstate Family Support Act ("UIFSA") and the 1994 adoption of the federal Full Faith and Credit For Child Support Orders Act ("FFCCSOA"). The 1996 federal "welfare reform" bill' affected both of these statutes by requiring the states to pass UIFSA by January 1, 1998 and by amending FFCCSOA …

Introduction To Panel Five: The Inter-Subjectivity Of Objective Justice: A Theory And Praxis For Constructing Latcrit Coalitions, Elizabeth M. Iglesias

Articles

No abstract provided.