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Case Western Reserve University School of Law

Series

1997

Articles 61 - 74 of 74

Full-Text Articles in Law

The Case For A Permanent International Truth Commission, Michael P. Scharf Jan 1997

The Case For A Permanent International Truth Commission, Michael P. Scharf

Faculty Publications

This Article presents the case for the establishment of a permanent international truth commission as an adjunct to a permanent international criminal court or domestic prosecutions. Such a commission would be available to countries in the aftermath of situations involving grave humanitarian or human rights crimes. From the experience of the several international and national truth commissions established to date, this Article seeks to distill a framework for a pro- posed permanent international truth commission which would avoid the major problems that afflicted its predecessors. A draft statute for a permanent international truth commission is appended at the end of …

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Reshaping The Precontractual Liability Debate: Beyond Short-Run Economics, Juliet P. Kostritsky Jan 1997

Reshaping The Precontractual Liability Debate: Beyond Short-Run Economics, Juliet P. Kostritsky

Faculty Publications

This article responds to three recent treatments of precontractual bargaining by Professors Richard Craswell and Avery Katz and Mr. Wouter vils: Richard Craswell, Offer, Acceptance, and Efficient Reliance, 48 STAN. L. REv. 481 (1996); Avery Katz, When Should An Offer Stick? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 YALE L.. 1249 (1996); and Wouter Wils, Who Should Bear the Costs of Failed Negotiations? A Functional Inquiry Into Precontractual Liability, 4 JOURNAL DES EcONOMsMs Er DES ETUDES HUMAINES 93 (1993).

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The Jury Is Still Out On The Need For An International Criminal Court, Michael P. Scharf Jan 1997

The Jury Is Still Out On The Need For An International Criminal Court, Michael P. Scharf

Faculty Publications

In 1989, the United Nations General Assembly proclaimed the 1990s to be "The Decade of International Law." Moreover, 1990, which witnessed both the devolution of the Cold War and the effective use of the United Nations to coalesce universal support for international action against Iraq for its invasion of Kuwait, was a year of renewed optimism for international institutions. It is therefore fitting that proposals for an international criminal court should, at this time, get a fresh look from the international legal community. Towards this end, in the words of the U.S. Representative to the United Nations Sixth (Legal) Committee …

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Robert Mcnamara And The Art And Law Of Confession: ‘A Simple Desultory Philippic (Or How I Was Robert Mcnamara’D Into Submission)’, Robert N. Strassfeld Jan 1997

Robert Mcnamara And The Art And Law Of Confession: ‘A Simple Desultory Philippic (Or How I Was Robert Mcnamara’D Into Submission)’, Robert N. Strassfeld

Faculty Publications

This Article examines McNamara's "confession" and the public response to it within the context of an American tradition of confession in law and literature. Part I traces that tradition to the criminal conversion narratives and gallows speeches of colonial New England. Puritan society had clear expectations of what it took to make a good confession, and the Article identifies these rules for confession. It also examines the functions of confession in that society and argues that these confessions had several social consequences, including easing the consciences of those implicated in the criminal's punishment; bolstering civil and religious authority; warning the …

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Tax Notes By Any Other Name Would Smell Sweeter, Erik M. Jensen Jan 1997

Tax Notes By Any Other Name Would Smell Sweeter, Erik M. Jensen

Faculty Publications

Those of us with academic careers at stake must take the bull by the horns, damn the torpedoes, and gather no moss. Let's get the Tax Notes name changed.

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Guidance Rules And Enforcement Rules: A Better View Of The Cathedral, Dale A. Nance Jan 1997

Guidance Rules And Enforcement Rules: A Better View Of The Cathedral, Dale A. Nance

Faculty Publications

Contemporary economic analysis of law is a product of the confluence of standard microeconomics with a legal tradition heavily influenced by American Legal Realism. The effect of this merger has been an analysis of legal institutions from the perspective of the Holmesian "bad man," who sees predicted legal actions as merely various expected material costs or benefits to be taken into account. This might be illuminating for the purposes of an "outsider," such as a sociological behaviorist or perhaps even a legal advisor alerting her "bad man" client to the risks of adverse legal consequences. But it produces bizarre results …

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Rationing Expensive Lifesaving Medical Resources, Maxwell J. Mehlman Jan 1997

Rationing Expensive Lifesaving Medical Resources, Maxwell J. Mehlman

Faculty Publications

In this Article, Professor Mehlman examines the possible systems for rationing expensive lifesaving medical technologies. First, he concludes that the costs of any rationing system probably exceed its benefits. Consequently, he rejects the rationing of expensive but available lifesaving medical technologies. Second, he argues that the increased availability of the technologies and the recent expansion of patient rights to sue will result in a substantial number of judicial challenges to rationing. Finally, he suggests detailed criteria to aid the courts in deciding whether a resource has been improperly rationed.

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The Automobile Exception Transformed: The Rise Of A Public Place Exemption To The Warrant Requirement, Lewis R. Katz Jan 1997

The Automobile Exception Transformed: The Rise Of A Public Place Exemption To The Warrant Requirement, Lewis R. Katz

Faculty Publications

The Supreme Court in recent years has aggressively pursued restrictions on a person's Constitutional protections from unreasonable searches and seizures. Perhaps no better example exists of the radically changing fourth amendment analysis than the automobile exception to the warrant requirement This exception allows a law enforcement official with probable cause to believe that evidence of a crime is hidden in a vehicle to search that vehicle without obtaining a search warrant This Article explores the genesis and unchecked growth of the automobile exception from a necessary outgrowth of the exigencies of protecting police officers and preventing tampering with evidence, to …

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Judicial Review Of Customs Service Actions, Peter M. Gerhart Jan 1997

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 …

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A Critique Of The Yugoslavia War Crimes Tribunal In Report Of The International Law Association On An International Criminal Court, Michael P. Scharf Jan 1997

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 …

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Legitimacy And The Useful Arts, Craig Allen Nard Jan 1997

Legitimacy And The Useful Arts, Craig Allen Nard

Faculty Publications

The fundamental question this Article addresses is who should be primarily responsible for making patent validity determinations: the courts5 or the Patent and Trademark Office (“PTO”)?6 Which entity *517 would best serve the constitutional goal of promoting the progress of the useful arts?

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United States Supreme Court: 1997 Term, Paul C. Giannelli Jan 1997

United States Supreme Court: 1997 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

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Swapping Amnesty For Peace: Was There A Duty To Prosecute International Crimes In Haiti?, Michael P. Scharf Jan 1997

Swapping Amnesty For Peace: Was There A Duty To Prosecute International Crimes In Haiti?, Michael P. Scharf

Faculty Publications

By examining the political realities of the Haiti situation and the applicable provisions of treaty and customary law, this Article seeks to assess whether the Haitian amnesty did indeed achieve "a proper mix." To this end, the Article begins with a description of the abuses reportedly committed by Haiti's military regime and the international community's attempts to restore the democratically-elected govemment to power. Next, it explores the policy arguments for and against amnesty as applied to the Haitian situation and analyzes the scope of both the Haitian amnesty law and President Aristide's amnesty decree. This section is followed by a …

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Terry V. Ohio At Thirty: A Revisionist View, Lewis R. Katz Jan 1997

Terry V. Ohio At Thirty: A Revisionist View, Lewis R. Katz

Faculty Publications

In this Article, I suggest that, while the Warren Court provided a needed tool to police, it failed to achieve its stated purpose of tying the practice to the Fourth Amendment reasonableness standard. First, the Court failed to adequately define an "investigatory stop," leading later courts to harden the definition, eliminating the Fourth Amendment from most on-the-street police-citizen encounters. Second, the facts in Terry failed to meet the reasonableness standard Chief Justice Warren purported to apply and which subsequently has been further weakened in later cases. Finally, the decision in Terry failed to strike a meaningful Fourth Amendment balance between …

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