Law Commons^™

Summary Judgment In Florida: The Road Less Traveled, Leonard Pertnoy

Faculty Articles

This article will first explore the origins of summary judgment in the Florida courts. Next, the Holl v. Talcot standard (the "Holl standard") shall be discussed. The discussion then turns to arguments in favor of maintaining the Holl standard, including the great costs which arise by the application of the standard, and ultimately, a discussion debunking those arguments. Finally, partial summary judgment shall be discussed, introducing its potential to assist the practitioner in achieving, in part, progress towards a more predictable and useful summary judgment process.

The Health Insurance Debate In Canada: Lessons For The United States?, Mary Anne Bobinski

Faculty Articles

This Essay begins with an intentionally ambiguous title. Are comparisons to Canada relevant and useful for policy-makers in the United States and, if so, what lessons can we learn? Part II of this Essay highlights some of the risks and benefits of cross-border comparisons between the United States and Canada. In Part III, I analyze some of the key data points often cited in comparing the two health care systems. Part IV explores the current Canadian debate about private health insurance. Finally, in Part V, I focus on the lessons from Canada for the health insurance debate in the United …

Patent Reform And Differential Impact, Matthew Sag, Kurt W. Rohde

Faculty Articles

The structure of the article is as follows. Part I provides an introduction to the problems created by bad patents and introduces the differential impact test for evaluating patent reform proposals.

Part II examines the origin of bad patents and applies two different economic models to explain their persistence. The first model focuses on a potential infringer’s incentives to challenge a bad patent; the second model focuses on a patent holder’s incentive to assert a patent. We explain bad patents as an emergent phenomenon: they are the product of the apparently low quality of patent examination and the complex, uncertain, …

Protecting The Tribal Harvest: The Right To Catch And Consume Fish, Catherine O’Neill

Faculty Articles

This article transcribes a presentation delivered by Professor O’Neill at the EPA-Tribal Leaders Summit, hosted by the Confederated Tribes of the Umatilla Indian Reservation, August 21-25, 2006. This article maintains that the call to protect tribal harvests—to ensure healthy and robust fisheries—is at the core of the sovereign compact between the United States and the various Native nations. The United States is, in fact, legally obligated to uphold this compact, manifested prominently in the treaties. The United States and the states are also legally bound to remedy a long history of attempts to assimilate and discriminate against Native peoples and …

Civil Liability For Violations Of International Humanitarian Law: The Jurisprudence Of The Ethiopia-Eritrea Claims Tribunal In The Hague, Won Kidane

Faculty Articles

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions. In practice, the enforcement of this important provision of international humanitarian law has remained a matter …

Standardized Tests, Erroneous Scores, And Tort Liability, Vincent R. Johnson

Faculty Articles

Tort law offers an appropriate vehicle for handling the increased prevalence of standardized testing in the wake of the No Child Left Behind Act and the potential miss-scoring problems that arise with standardized tests. This incentivizes the use of reasonable care in scoring standardized tests and justly compensates for miss-scoring harms when doing so does not unduly burden testing agencies. Neither contract law nor the existing Truth-in-Testing law adequately affords the sort of remedies and protections the issue of standardized testing and miss-scoring pose.

The ability for tort liability to adequately hold testing agencies accountable for miss-scoring errors and afford …

Urban Law School Graduates In Large Law Firms, David Wilkins, Ronit Dinovitzer, Rishi Batra

Faculty Articles

Two major trends have dominated the American legal profession in recent years. First, "the legal profession has seen a striking growth in the largest firms during the latter part of the last century." In 1960, Shearman Sterling & Wright (now called Shearman & Sterling) was the largest firm in the country - and therefore the world. It had 125 lawyers. By the close of the century, there were more than 250 firms larger than Shearman & Sterling had been forty years before, with the largest ten topping the scales at 1000 lawyers or more. Today, in order to make the …

Past Reflections, Future Insights: African Asylum Law And Policy In Historical Perspective, Edwin Odhiambo Abuya

Faculty Articles

This article argues that an understanding of the evolution of asylum is an essential ingredient in the search for ideas and perspectives to the plight facing forced migrants. Using Kenya as a case study, the paper evaluates the extent to which procedures used to determine claims for asylum, protection outcomes and entitlements met international human rights and refugee law standards. It is contended that limited resources, porous boundaries and the mass movement of asylum seekers have compromised the level of protection offered to those who seek surrogate protection in African states like Kenya. In conclusion, critics in the area of …

The Contract Thesis Of The Federal Spending Power, David Engdahl

Faculty Articles

This article focuses on the inherent similarities between spending power and contract law, and elaborates on Congress’s ability to “contract” with the States, to have States consent to laws beyond Congress’s enumerated powers with federal funding as consideration. A majority of the federal budget is currently spent on social security, social and economic assistance, education, and other aid and development programs. This “contract” thesis permits our system to maintain the virtues of enumerated federal powers. This analogy might suggest a limited role for private parties in enforcing their terms. The article is offered as an illustration for how legal scholarship …

No Mud Pies: Risk Avoidance As Risk Regulation, Catherine O’Neill

Faculty Articles

Regulation in the environmental context has, until recently, been guided by risk reduction - strategies that require risk-producers to prevent, limit, or clean up contaminants. However, it has increasingly come to rely on "risk avoidance" - strategies that call upon risk-bearers to alter their practices and ways of living so as to avoid exposure to contaminants left unabated. For example, women and children might be asked to eliminate fish from their diets to avoid the risks of methylmercury contamination; asthmatics might be advised to refrain from going outside on "ozone alert" days to avoid the risks of ground-level ozone pollution; …

The Enron Trial Drama: A New Case For Stakeholder Theory, Russell Powell

Faculty Articles

This article analyzes the trial of Jeffrey Skilling and Kenneth Lay, including an empirical analysis of jury comments made after the trial. The study indicates that the jury was influenced by the scope of the Enron collapse and its impact on employees, in particular. The article argues that if juries (or judges) are influenced by the magnitude of harm caused by fraudulent, disloyal behavior, especially when it impacts large numbers of working and middle-class employees, it is likely that the same factors will impact the outcome of derivative suits claiming breaches in fiduciary duties brought against officers and perhaps even …

Fishery Conservation And Management Act Reauthorization: “A” For Effort, “C” For Substance, Madeline Kass

Faculty Articles

In one of its last acts of 2006, the 109th Congress passed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (FCMRA), reauthorizing the nation's primary fishing law through the year 2013. The president signed on in early January 2007. Those involved in the reauthorization effort deserve kudos for achieving a successful bipartisan compromise, a relatively rare phenomenon in recent years. Congress also deserves praise for taking positive action towards improving existing law and for rejecting preliminary proposals designed principally to derail conservation efforts. Yet, in the face of unrelenting, catastrophic fish stock declines, it is unclear whether the …

Intellectual Property From Below: Copyright And Capability For Education, Margaret Chon

Faculty Articles

An approach to intellectual property from within a human development framework can contribute meaningfully to the WIPO Development Agenda, which was approved by the WIPO General Assembly in September 2007. Setting the proper regulatory balance between exclusive rights and access through exceptions and limitations to those rights is key to building national innovation capacity. A human development framework allows intellectual property norm-setters to prioritize the development of healthy and literate populations who are foundational to the functioning knowledge economies that intellectual property already assumes. Building upon an earlier piece in which Professor Chon posited that a substantive equality principle was …

Afterword: The Race Question In Latcrit Theory And Asian American Jurisprudence, Robert S. Chang, Neil Gotanda

Faculty Articles

In the tradition of LatCrit Afterwords, Professors Chang and Gotanda take the liberty of raising questions that extend beyond the particular themes of this LatCrit Conference and the papers published in this Symposium. They return to two questions - ethnicity versus race and black exceptionalism - that were raised in early LatCrit Conferences but which have since been moved to the background. They ask what LatCrit Theory and Asian American Jurisprudence might teach us about minority on minority conflict and other ethno-racial fault lines. They present an analytic model to help understand commentaries on racial conflict and coalition. This model …

Old Hate In New Bottles: Privatizing, Localizing, And Bundling Anti-Spanish And Anti-Immigrant Sentiment In The 21st Century, Steven W. Bender

Faculty Articles

Professor Bender’s introduction focuses on two trends that emerged or accelerated in the past few years - (1) the localization of anti-Spanish and anti-immigrant sentiment and (2) the bundling of anti-Spanish regulation with other anti-immigrant regulation. Although both of these practices have roots in the last century," no doubt of late they have become more widespread and pronounced.

Pilgrim To Nowhere - The Mysterious Journey Of Robert Rodes, Emily A. Hartigan

Faculty Articles

Notre Dame Law Professor Robert Rodes advocates for Pilgrim Law, which is based on the preferential option for the poor. Pilgrim Law is the jurisprudential manifestation of liberation theology. Rodes used Milovan Djilas, author of anti-socialist works such as Conversations with Stalin and The New Class, for insight. Drawing from Djilas, Rodes concludes that class will always count, but count in a nuanced way. This revelation was discovered within Djilas’ self-aware and trenchant analysis amid the reality of the theoretically “classless” societies of Soviet (and Yugoslav) socialism. This empirical insight is what Rodes finds crucial to his Pilgrim Law advocacy. …

Unlaw, Emily A. Hartigan

Faculty Articles

The United States is in a time of “unlaw” that is both a point in circular time, the time of eternal return, and a point never before reached. This “unlaw” infuses both the practical, applied, and experiential world of politics. Additionally, this era of “unlaw” also incorporates the intellectual world of philosophy and theology as well as political theory.

In this state of non-law, the United States incarcerates a higher percentage of people than any other developed nation. The United States claims to value money so much that it is speech, and thus free under the First Amendment. This results …

Thompson/Mcnulty Memo Internal Investigations: Ethical Concerns Of The Deputized Counsel, Colin P. Marks

Faculty Articles

Outside counsel who conduct internal investigations for corporate clients have always faced ethical concerns, especially when interviewing employees. Generally, a carefully crafted blanket statement at the beginning of the interview explaining outside counsel's role was sufficient to address these concerns. However, recent charging policies adopted by the Department of Justice ("DOJ") have drastically changed the rules. These policies, articulated in what is now commonly referred to as the "Thompson Memo," after the author and then Deputy General Larry Thompson, allowed prosecutors to consider factors such as waivers of the attorney-client privilege and work-product protections and whether the company provides legal …

Categorical Exclusions From Capital Punishment: How Many Wrongs Make A Right?, Dora W. Klein

Faculty Articles

The two categorical exclusions of age and mental capacity will impact not only those offenders who are excluded from the death penalty, but also those offenders who remain subject to this punishment. The Supreme Court’s decisions in Roper v. Simmons and Atkins v. Virginia raise the issue that a capital-punishment-limiting decision possesses wrongs of its own. Both decisions limit the death penalty—Roper excludes from this punishment offenders who committed their crimes before they were eighteen years old and Atkins excludes offenders who are mentally retarded. But in both cases, the Supreme Court overstated the uniformity and universality of traits associated …

The Evolving Standard For The Granting Of Mandamus Relief In The Texas Supreme Court: One More Mile Marker Down The Road Of No Return, Richard E. Flint

Faculty Articles

The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making.

In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …

Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum,, Bernard D. Reams Jr., Michael P. Forrest

Faculty Articles

Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results.

Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or …

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21, Michael S. Ariens

Faculty Articles

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century.

Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

With respect to easing registration requirements, the State Securities Board (“Board”) had the opportunity to lead both state and federal securities regulatory bodies through rule changes for finders--those who assist issuers in finding purchasers. The Board also issued no-action letters for nonregistration of securities issued in connection with various reorganizations involving a Massachusetts business trust, a demutualization of an insurance company, and an exchange of private shares for public American Depository Receipts.

Other than considering the availability of the in pari delicto defense for litigation-funding agreements, the courts generally avoided the interesting issues. Such issues include whether a seller’s fraud …

Electronic Surveillance Of Terrorism: The Intelligence/Law Enforcement Dilemma - A History, William Funk

Faculty Articles

The Foreign Intelligence Surveillance Act (FISA) has been much in the news. Because the requirements for a judicial warrant under FISA do not require the traditional showings for electronic surveillance for law enforcement purposes, one of the issues relating to EISA is the extent to which surveillance under that Act may be undertaken for the purposes of criminal law enforcement, rather than for obtaining foreign counterintelligence or counterterrorism information. This issue became particularly salient after 9/11 when at the administration's urging Congress passed an amendment to KISA in the USA PATRIOT Act that eliminated the previous requirement that "the purpose" …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

The Court Of Appeals For The Fifth Circuit: A Legal Analysis And Statistical Review Of 2005-2006 Insurance Decisions, Willy E. Rice

Faculty Articles

he Fifth Circuit Court of Appeals decided and published twenty-four insurance-related appeals between June 2005 and May 2006 from cases originating in seven federal district courts. Like petitioners in prior years, the overwhelming majority of the 2005-2006 appellants petitioned the court of appeals to reverse or vacate district courts' adverse summary judgments as well as the lower courts' allegedly questionable interpretations of various insurance contracts. Most of the controversies involved familiar procedural and substantive questions of law, but the Fifth Circuit also decided many questions of fact. Furthermore, several preemption questions and disputes over subject matter jurisdiction appeared among the …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

In June 2007, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number amendments to the rules of criminal procedure. The amendment to Criminal Rule 7 would delete subdivision (c)(2) because it is covered in Rule 32.2(a). The change to Criminal Rule 32 would provide that the presentence report should state whether the government is seeking forfeiture of property. Amendments to Criminal Rule 32.2. would change a number of procedures related to criminal forfeiture. Criminal Rule 41 would create a two-step process for seizing and reviewing electronic storage media. Amendments to the …

Comment: The Ninth Amendment: A Constitutional Challenge To Corporal Punishment In Public Schools, David R. Hague

Faculty Articles

The Supreme Court's refusal to resolve the conflict over corporal punishment in public schools perpetuates the uncertainty over children and parents' legal rights. The use of corporal punishment in public schools unconstitutionally abridges parents' right to direct the upbringing of their children because it forces parents to accept the emotional and physical marks that corporal punishment leaves on their children. In 1977, the Supreme Court addressed the constitutionality of corporal punishment in Ingraham v. Wright. The Court held that the cruel and unusual punishment clause of the Eighth Amendment applied only to criminal punishments and thus provided no protection against …

State Practice In The Management And Allocation Of Transboundary Groundwater Resources In North America, Gabriel Eckstein, Amy Hardberger

Faculty Articles

Throughout the world, international and state political boundaries divide groundwater resources into politically convenient jurisdictions. Subsurface water, however, does not recognize such borders and flows freely without regard to overlying politics. This disregard for the political dimension, coupled with the growing global importance of fresh water, has the potential for aggravating disputes and conflicts over the use, allocation, and preservation of such resources. To date, widely accepted norms of international law applicable to transboundary aquifers have yet to emerge. However, local and regional agreements, including both formal and unofficial arrangements, suggest the emergence of state practice that should be considered …

The Next Generation Of Legal Citations: A Survey Of Internet Citations In The Opinions Of The Washington Supreme Court And Washington Appellate Courts, 1999-2005, Tina Ching

Faculty Articles

As more legal research is conducted online, it is reasonable to conclude that there will be a corresponding increase in citations to the Internet by judges in their opinions. With the widespread public use of the Internet to access information along with the constant changes and impermanence of websites, citing to the Internet should be an issue of increasing concern to the legal community across the country. This paper surveys the types of Internet sources the Washington state Supreme Court and Appellate Court justices are citing. It discusses the interrelated issues of link rot and the impermanence of web pages, …