Law Commons^™

Civil Rights And Related Decisions, Eileen Kaufman

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No abstract provided.

Emerging Applications Of Jewish Law In American Legal Scholarship: An Introduction, Samuel J. Levine

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In recent years, the field of Jewish law has gained increasing prominence in American law schools and legal scholarship. At the same time, in the realm of scholarship, a substantial body of literature has developed considering the relevance of Jewish legal thought to a variety of issues in the American legal system. As the substance, scope, and volume of this scholarship demonstrate, an analysis of Jewish law may prove helpful in providing comparisons and contrasts to both controversial and seemingly settled areas of American law. At the 2007 Annual Meeting of the Association of American Law Schools, the Section on …

Illuminating The Dark: The Stories Of Lowell B. Komie And The Pursuit Of Meaningful Work, Louise Harmon

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No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman

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No abstract provided.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

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No abstract provided.

Why Not A Justice School? On The Role Of Justice In Legal Education And The Construction Of A Pedagogy Of Justice, Peter L. Davis

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Why are law schools not named schools of justice, or, at least, schools of law and justice? Of course, virtually every law school will reply that this is nit-picking; all claim to be devoted to the study of justice. But our concern is not so easily dismissed. The names of institutions carry great significance; they deliver a political, social, or economic message. . . This Article contends that not only do law schools virtually ignore justice – a concept that is supposed to be the goal of all legal systems – they go so far as to denigrate it and …

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

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No abstract provided.

"It's Not About The Money!": A Theory On Misconceptions Of Plaintiffs' Litigation Aims, Tamara Relis

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This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs' aims been examined from the perspectives of defense lawyers. These are significant gaps in the …

"Curst Be He That Moves My Bones:" The Surprisingly Controlling Role Of Religion In Equitable Disinterment Decisions, Peter Zablotsky

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No abstract provided.

Mixing Oil And Water: Reconciling The Substantial Factor And Results-With-In-The-Risk Approaches To Proximate Cause, Peter Zablotsky

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No abstract provided.

Academic Freedom As Private Ordering: Politics And Professionalism In The 21st Century, Deborah W. Post

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No abstract provided.

Consequences Of Power, Tamara Relis

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This Article challenges a basic premise that litigants and their attorneys broadly understand and desire similar things from litigation-track mediation processes. In providing new empirical research from medical malpractice cases, I offer disconcerting evidence of the surprising degree to which perceptions and meanings ascribed to these litigation-track processes are not only diverse, but frequently contradictory. I demonstrate that notwithstanding their different allegiances, lawyers on all sides of cases have correspondingly similar understandings of the meaning and purpose of litigation-track mediations. At the same time, I show how plaintiffs and defendants have the same understandings and visions of what mediation is …

Reflections On Responsibilities In The Public Square, Through A Perspective Of Jewish Tradition: A Brief Biblical Survey, Samuel J. Levine

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In recent years, there has developed in the United States a substantial and growing interest in the role of religion in the public square. Within religious communities, the conversation has, at times, focused on the approach of specific religious traditions toward their own responsibilities to contribute to and influence the moral, ethical, and legal standards of American society. For Jewish communities living in the United States, these questions comprise yet another application of issues the Jewish people has confronted throughout its history. To the extent that the nature of American political and social structures differ significantly from those experienced by …

Innocents Abroad: Reflections On Summer Abroad Law Programs, Eileen Kaufman, Louise Harmon

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No abstract provided.

Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii

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As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche’s philosophy, I argue …

Functional Neuroimaging Information: A Case For Neuro Exceptionalism?, Stacey A. Tovino

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The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.

No longer new or emerging, the burgeoning …

Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino

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Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task. Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics. Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature. In this Article, I place these issues in their proper historical …

Bankruptcy Pro Bono Representation Of Consumers: The Seven Deadly Sins, Nancy B. Rapoport, Roland Bernier Iii

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This article attempts to walk the reader through the morass left by BAPCPA, using the seven deadly sins as its motif.

The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel

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It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …

Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel

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A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …

Keeping Arbitrations From Becoming Kangaroo Courts, Jeffrey W. Stempel

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Arbitration has grown rapidly during the past 20 years. Particularly notable and problematic is the rapid onset of new or mass arbitration that has resulted from the judiciary's modern favorable attitude toward enforcement of arbitration clauses, even those imposed upon consumers, employees, small vendors, and debtors as part of a standardized contract of adhesion. In a separate article (See "Mandating Minimum Quality in Mass Arbitration," 76 U. Cin. L. Rev. (forthcoming 2007)), I present a more comprehensive list of what I regard as the necessary steps that must be taken to insure minimally acceptable quality and fairness in mass arbitration. …

Of Frivolous Litigation And Runaway Juries: A View From The Bench, Thomas A. Eaton

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The political case for tort reform is based in large measure on the perception that there are too many frivolous law suits and too many excessive jury awards. Where there is considerable empirical evidence casting doubt on both these propositions, they remain the linchpins of the tort reform movement. Scholars, lobbyists, and legislators all have had a voice in the tort reform debates. The viewpoints of trial judges, however, have been largely absent. This is unfortunate because trial judges are the government officials with the closest view of the tort litigation system. They are the ones who see tort litigation …

Beyond Compensation: Using Torts To Promote Public Health, Elizabeth Weeks Leonard

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Personal injury litigation, or tort law, traditionally, has been viewed as antithetical to the goals of public health. The focus on individual compensation for injuries resulting from accidents, products, and international wrongdoing arguably does not serve the "greater good" or communitarian objectives of public health. This Article, originally presented on a January 2006 AALS Panel on Teaching Public Health In Law School, takes issue with the traditional view and will demonstrate ways that personal injury litigation and public health objectives may be complimentary and mutually reinforcing. Some areas of tort law, such as mass torts against tobacco companies, toxic polluters, …

Standard Setting, Patents, And Access Lock-In: Rand Licensing And The Theory Of The Firm, Joseph S. Miller

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Many leading voluntary standard-setting organizations (SSOs) have adopted intellectual property (IP) policies under which participants must promise to license any patents on technology that they contribute to a standard, and to do so on reasonable and nondiscriminatory terms (RAND). The standard setting literature includes a substantial focus on the widespread use of this RAND promise. A common refrain in these analyses of the RAND promise is that its meaning is dysfunctionally uncertain. We know more about the RAND promise, however, than the existing literature suggests. I show that we already know the RAND promise's core meaning, and why it remains …

Assignment Of Receivables Under Article 9: Structural Incoherence And Wasteful Filing, Thomas E. Plank

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No abstract provided.

Hell Hath No Fury Like An Investor Scorned: Retribution, Deterrence, Restoration, And The Criminalization Of Securities Fraud Under Rule 10b-5, Joan Macleod Heminway

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This brief article focuses attention on the ineffectual nature of prosecutions of corporations and their insiders - generally, officers and directors - for securities fraud under Rule 10b-5. Specifically, the article begins by briefly summarizing the nature of enforcement actions and related penalties under Rule 10b-5. Next, the article argues that, as currently conceived and executed, criminal enforcement actions under Rule 10b-5 are ineffective as a means of achieving retribution, as deterrents of undesirable behavior, and as enforcement vehicles that vindicate the policies underlying Rule 10b-5. As a means of addressing these criticisms, the article suggests possible enhancements to Rule …

Lessons From Katrina: Response, Recovery And The Public Health Infrastructure, Elizabeth Weeks

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This paper was presented at DePaul University in March 2006, as part of a Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health. Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. The Symposium addressed the role of government, policy-makers, …

Nonjurisdictionality Or Inequity, Elizabeth Chamblee Burch

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This short piece, written for the Northwestern University Law Review Colloquy, responds to Professor Scott Dodson's comment on Bowles v. Russell, titled Jurisdictionality and Bowles v. Russell. Dodson proposes to navigate a path between Justice Thomas's majority opinion and Justice Souter's dissent by embracing Thomas's use of mandatory and Souter's argument for deeming appellate deadlines nonjurisdictional. Considering the systemic, equitable policies underlying Rule 4(a)(6) and the prototypical examples distinguishing jurisdictional rules (those delineating classes of cases) from nonjurisdictional claim-processing rules, this nonjurisdictional alternative makes sense. It is the mandatory aspect of Professor Dodson's proposal that concerns me; it leaves no …

The "Order-Of-Battle" In Constitutional Litigation, Michael Wells

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This article examines and defends a procedural rule that figures prominently in constitutional tort litigation, has drawn sharp criticism from the federal judiciary, and seems to have lost the support of at least four sitting Supreme Court Justices. In order to recover damages, plaintiffs must not only prove a constitutional violation but also fend off assertions of official immunity. In ruling on motions to dismiss the complaint and motions for summary judgment, a preliminary question is the sequence in which the two issues should be addressed-a problem the Justices call the "order-of-battle." Morse v. Frederick, the "Bong Hits Jesus" case, …

Defending The Right Of Self-Representation: An Empirical Look At The Pro Se Felony Defendant, Erica J. Hashimoto

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Why would a criminal defendant waive the right to counsel and proceed pro se? Conventional wisdom assumes that there is no good reason for a defendant to choose self-representation, and those who make that choice are therefore either mentally ill or foolish. Courtroom proceedings in cases of high-profile pro se defendants like Colin Ferguson and, more recently, Zacarias Moussaoui and John Muhammad, have only increased the dominance of this prevailing view. Even the Supreme Court has assumed that the right of self-representation in practice hurts, rather than helps, criminal defendants. Until now, however, no empirical study has examined the phenomenon …