Law Commons^™

The Evolution Of United States Antitrust Law: The Past, Present, And (Possible) Future, Albert A. Foer, Robert H. Lande

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As the world’s nations rapidly move from systems in which central planning and monopoly are replaced by free markets,2 it becomes increasingly valuable to consider the histories of competition policy experienced in different nations, on a comparative basis.3 In this article, we focus on the history of antitrust in the United States, the first nation to develop and fully-articulate a competition policy, drawing out themes that may be useful to other countries as they contemplate the shape and direction of their own competition regimes. We show that the American competition policy has reflected an underlying stability and bi-partisanship, but that …

Government As God: An Update On Federal Intervention In The Treatment Of Critically Ill Newborns, Dionne L. Koller

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Whether a severely impaired or critically ill infant should receive lifesaving, and sometimes extraordinary, medical treatment, or be allowed to die, is hotly debated. The issue initially garnered public attention in 1982, when an infant who was born with Down's Syndrome, “Baby Doe,” was allowed to die from a correctable birth defect. Following this, the federal government took a lead role in determining the fate of critically ill newborns. In the meantime, doctors, philosophers, and others have debated whether federal interference in this area is appropriate.

This essay will bring the reader up to date on the “Baby Doe” issue …

The Benefits Of Voluntary Inpatient Psychiatric Hospitalization: Myth Or Reality?, Donald H. Stone

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Throughout the United States, mentally ill persons are confined against their will in psychiatric hospitals as a result of being accused of dangerous behavior. Some are committed involuntarily by a judge after an administrative hearing during which they are afforded legal representation, a right to be present, and important due process protections, including the right to cross-examine witnesses and present one's own witnesses. However, a significant number of individuals, initially confined in psychiatric institutions for allegedly posing a danger to life or safety, never see an impartial judge, lawyer, or even a family member. These mentally ill individuals are not …

Feminist Foundations For The Law Of Business: One Law And Economics Scholar's Survey And (Re)View, Barbara Ann White

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The purpose of this Essay is to suggest frameworks and modes of inquiry for applying feminist legal analysis to business law and the related theory of law and economics. It does so in two ways. One is to assess works already written by feminist scholars in the business law arena, highlighting how those contributions have begun to pave the way towards enriching the scope of business law analysis. The other is to offer two new roles for feminist jurisprudence. One role is to define just (that is, fair) distributions of rights and the other role is to define social judgments …

Hell Hath No Fury Like A Fan Scorned: State Regulation Of Sports Agents, Phillip J. Closius

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This article first describes the existing system of state statutes regulating sports agents, including the proposed Model Uniform Athlete Agents Act. The article then examines the validity of these statutes in the context of jurisdictional limitations and dormant Commerce Clause principles. Lastly, federal regulation and the rules of professional sports unions are considered as alternatives to state legislative activity.

Slouching Towards Equality, Christopher J. Peters

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Drawing on his work in two previous articles, Christopher Peters contends that uncertainty about substantive moral norms cannot justify a presumption of equal treatment. Arguments for equal treatment in the face of uncertainty are types of consequentialist claims; they are not claims of what Peters calls prescriptive equality, that is, for treating likes alike merely because they are alike. Peters contends that the consequentialist case for equal treatment as a response to uncertainty fails in two respects. First, it fails to demonstrate that equal treatment is likely to be a more satisfactory response to moral uncertainty than unequal treatment. Second, …

The Demonization Of Jonathan Pollard, Kenneth Lasson

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This article discusses the case of Jonathan Pollard, and the issues surrounding his conviction of spying for Israel while acting as a U.S. naval intelligence analyst. Cited are the writer's view of the inequities of his conviction, and possible political motivations for his sentence.

Constructions Of Client Competence And Theories Of Practice, Robert Rubinson

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An entrenched stereotype about the elderly is that they inevitably experience a progressive decline in cognitive function - what the Article calls the "idea of decrement." The vast majority of elderly, however, do not experience declining competence for most or all of their lives. Nevertheless, attorneys interpret much of what elderly clients say and do as the product of cognitive impairment, and sometimes even the elderly themselves construct stories about the world and their circumstances in line with the idea of decrement. These attitudes and social constructions, interacting in complex ways, can distort the ability of attorneys to represent elderly …

Proving The Obvious: The Antitrust Laws Were Passed To Protect Consumers (Not Just To Increase Efficiency), Robert H. Lande

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Sometimes an entire field goes astray. When its dominant members make a major mistake, an opportunity arises for someone to say, "The emperor has no clothes." This is what happened to the antitrust world during much of the 1970s and 1980s. These circumstances gave me the opening and motivation to write the article that appeared in the Hastings Law Journal in 1982 (Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, hereafter Wealth Transfers).

Race, Space And Place: The Geography Of Economic Development, Audrey Mcfarlane

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This Article examines the extent to which the Empowerment Zones Program is properly viewed as a neutral, rational, and beneficial program for poor, inner-city communities and their residents by exploring the limits and potential of its chief mechanism, economic development, as a tool to achieve social justice for the inner cities. This Article grounds its exploration within the contested terrain of the city, not simply as a legal or juridical concept, but in terms of its reality as a lived place on the eve of the 21st century. By explicating some of the unwritten rules and processes of economic development …

Drum Majors For Justice, F. Michael Higginbotham, José F. Anderson

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Many lawyers worked with the legendary Thurgood Marshall to overturn the Supreme Court's infamous separate but equal doctrine, which had permitted racial segregation in schools and public accommodations. But while most Marylanders are aware of Marshall's contribution, few recognize the name of his colleague, William I. Gosnell.

At that time, Gosnell was one of only 32 black lawyers in the state of Maryland. In fact, due to the state's racial segregation policy, both he and Marshall had received scholarships to attend out- of-state law schools. They were denied entry to the University of Maryland because of their skin color. While …

Pollard Treated Unfairly, Kenneth Lasson

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No abstract provided.

Justice And Jonathan Pollard, Angelo Codevilla, Irwin Cotler, Alan Dershowitz, Kenneth Lasson

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No abstract provided.

Rules, Responsibility And Commitment To Children: The New Language Of Morality In Family Law, Jane C. Murphy

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Part One of this Article explores the meaning of morality by briefly reviewing a variety of attempts to explore the meaning of moral conduct. This Section draws on a variety of contemporary moral philosophers who have built on the classical tradition to develop a broader definition of moral behavior. This discussion provides a context for the current debate about the meaning of morality in family law and moral discourse in the no-fault era. Part One also reviews the historical debate about how law should strike a balance between promoting communitarian values and respecting autonomy and individual rights. The Article argues …

Substance Abuse, Families, And Unified Family Courts: The Creation Of A Caring Justice System, Barbara A. Babb, Judith D. Moran

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This article proposes an approach to family law decision-making tailored to assist families plagued by substance abuse. Substance abuse is linked to social, health, and economic problems facing Americans today and is a factor for a substantial number of family law litigants. By failing to address substance abuse issues, the family repeatedly may need to seek court intervention. The unified family court model is the concept of a single court that coordinates the work of independent agencies and tribunals, each with some limited role in resolving the problems incident to a family's legal matters. Professor Babb has created an interdisciplinary …

The Kantian Theory Of Public International Law, Mortimer N.S. Sellers

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No abstract provided.

Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg

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The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice . The rationale of the doctrine is that if there is no other person who can make the decision, let the biased person decide the case rather than have no decision made at all. The rule of necessity has been used in state administrative proceedings liberally despite the fact that it is widely recognized as unfair. This article analyzes current approaches to the doctrine, and after …

Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson

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"Veritas vos liberabit," chanted the scholastics of yesteryear. The "truth will set you free," echo their latter-day counterparts in the academy, intoning the mantra reverentially but with increasingly more hope than confidence, more faith than conviction.... The real world of the academy, of course, is not quite that wonderful, nor nearly as bad as many would suggest. The ironies become palpable, however, when those self-same institutions, which almost universally view themselves as bastions of free speech, instead stifle debate that is perceived as politically incorrect or otherwise embarrassing. Academic administrators naturally shy away from conflict and contention. They shun controversy. …

Justice And Rule Of Law In International Relations, Mortimer N.S. Sellers

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No abstract provided.

Death By A Thousand Cuts: The Rule Against Perpetuities, Angela M. Vallario

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This article suggests the policy and social justifications against dead hand control far outweigh transfer tax advantages provided to wealthy settlors and the potential revenue expected to be generated by the abolishment legislation. The abolishment legislation may be readily adopted by other jurisdictions in light of the legislatures' failure to recognize the consequences of unlimited dead hand control.

This article recognizes that the Rule is complicated, and Rule violations present harsh consequences for practitioners and their clients. In fact, violations of the Rule, due to its complexity, have been held as an attorney error, not subject to a malpractice claim. …

Domestic Violence, Substance Abuse And Child Welfare: The Legal System's Response, Jane C. Murphy, Margaret J. Potthast

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This Article begins by exploring and documenting the connections between domestic violence, substance abuse, and child abuse. Part II of the Article examines the legal system's response to child protection cases in which maternal abuse and, in some cases, substance abuse are present. This section begins by describing the shifting theories underlying child welfare in this country. It then contrasts these theories with child welfare practice by reporting the results of a study of eighty-five Child in Need of Assistance (CINA) cases in four jurisdictions in Maryland. Although the study examines a limited sample, the cases examined confirm the strong …

In Vento Scribere: The Intersection Of Cyberspace And Patent Law, Max Oppenheimer

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No abstract provided.

Drug Treatment Courts: Evolution, Evaluation, And Future Directions, Gloria Danziger, Jeffrey Kuhn

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No abstract provided.