Law Commons^™

Unenumerated Rights Under The U.S. Constitution, Thomas B. Mcaffee

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The symbol of modern constitutional law, for good or ill, is Roe v. Wade, the Supreme Court’s abortion decision. From the beginning, the big question has been, where in the text of the Constitution do were find this “right of privacy” that secures the right to choose abortion? Some scholars have argued that such a right could not be found in the text or structure of the Constitution. One powerful counter stems from a textual approach to giving effect to the Constitution. In this article, the author argues that, if we look carefully enough at the text and history, …

Book Review, David S. Tanenhaus

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This ambitious book impressively chronicles forms of imprisonment in American history from Columbus’s crossing in 1492, with at least four convicts among his crew, to the rise of five hundred years later of a “prison-industrial complex,” which employs over half a million people and incarcerates more than one million others. According to Christianson, a former investigative reporter and gubernatorial aide who is now contributing editor of The Criminal Law Bulletin, director of the New York Death Penalty Documentation Project, and chairman of the Board of the Safer Society Foundation, With Liberty for Some “is a history of how we …

Their Own Preposessions: The Establishment Clause 1999-2000, Leslie C. Griffin

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No abstract provided.

When Local Is Global: Using A Consortium Of Law Schools To Encourage Global Thinking, Nancy B. Rapoport

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Dean Rapoport will discuss students and faculty consortia focusing on the North American Consortium on Legal Education (NACLE), which, among other things, promotes student and faculty exchanges between and among three law schools in the U.S., three in Canada, and three in Mexico.

Doctors, Hmos, Erisa, And The Public Interest After Pegram V. Herdrich, Jeffrey W. Stempel, Nadia Von Magdenko

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The Employee Retirement Income Security Act of 1974 was enacted in the wake of highly publicized pension disasters in order to protect employee pension rights. Born as a piece of pro-worker legislation, it initially was criticized by business groups as a cause of bureaucratic arteriosclerosis that was worse than the disease of pension failures. Even worse, it prompted many employers to consider dispensing with pension plans altogether rather than struggle with the administrative and financial obligations of ERISA. Business, labor, and the public all complained about the law's complexity. It even became something of a national joke as regulators took …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 2000 and 2001.

A Plea For Rationality And Decency: The Disparate Treatment Of Legal Writing Faculties As A Violation Of Both Equal Protection And Professional Ethics, Peter Brandon Bayer

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This article builds on the work of others by demonstrating that as a matter of academic ethics, informed by cardinal legal standards of decency, the disparate treatment and adverse terms and conditions imposed on writing professors are not simply unfair but defy the ethical aspirations of American law schools. Specifically, as the construct for analysis, this article establishes and utilizes the proposition that the discordant status of legal writing professors fails to satisfy minimal professional ethics. As a model, this article shows that it is not even minimally rational under the Equal Protection Clause of the United States Constitution, our …

Not Interaction But Melding - The "Russian Dressing" Theory Of Emotions: An Explanation Of The Phenomenology Of Emotions And Rationality With Suggested Related Maxims For Judges And Other Legal Decision Makers, Peter Brandon Bayer

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Even after centuries of contrary philosophy and psychology, many commentators, jurisprudes, and law makers insist that emotions have no legitimate place in most legal decision making. This recalcitrance, of course, is misplaced in light of the powerful body of theory explaining that without emotions, decisions, including matters of law and policy, simply cannot be made. Judges, along with all societal actors, must disabuse themselves of the fallacious belief that emotions obstruct or obscure reason in all endeavors, particularly morality, law, and justice.

The project of truly apprehending emotions, however, requires more than appreciating that they play a crucial role in …

The William S. Boyd School Of Law Juvenile Justice Clinic, Mary E. Berkheiser

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This article reviews the work of the Juvenile Justice Clinic at the William S. Boyd School of Law.

Authorship, Dominance, And The Captive Collaborator: Preserving The Rights Of Joint Authors, Mary Lafrance

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For copyright purposes, determining whether a work has a single author or joint authors is important for a variety of reasons. Perhaps the most significant legal consequence of joint authorship is joint ownership, under which the authors enjoy equal and undivided ownership of the copyright, allowing each to exploit the work freely, subject to a duty to account to the others for a ratable share of the exploitation profits. Absent an agreement to the contrary, each author of a joint work has an equal claim to those profits and an equal right to exploit the work, even if the authors' …

They Toil Not, Neither Do They Spin: Civil Liability Under The Oregon Securities Law, Keith A. Rowley

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Under Oregon law, persons who sell securities in violation of statutory registration requirements, or by means of some misrepresentation or omission of material fact, may be liable to any person or entity who buys securities from or through them. Likewise, persons who buy securities by means of some misrepresentation or omission of material fact may be liable to any person or entity who sells securities to or through them. In addition to, or in lieu of, suing the person who committed the material misrepresentation or omission, a plaintiff may sue one or more persons or entities who might be vicariously …

Coverage For Unfair Competition Torts Under General Liability Policies: Will The "Intellectual Property" Tail Wag The Coverage Dog?, Francis J. Mootz Iii

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The scope of "advertising injury" coverage in general liability policies has been shrinking in response to the proliferation of liabilities caused by the growth of the cyber-economy. In response to this shrinking coverage under general liability policies, insurers have been quick to develop new endorsements and specialized products to fill the gaps in coverage. The author argues that significant commercial risks relating to unfair competition claims have been eliminated from coverage under general liability policies, but that there also appears to be no corresponding development of specific endorsements or stand-alone products to deal with this gap in coverage. Specifically, claims …

The Prudent Prosecutor, Leslie C. Griffin

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No abstract provided.

Procedural Uniformity And The Exagerated Role Of Rules, Thomas O. Main

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No abstract provided.

Mary S. Lawrence: Director Of Legal Research And Writing University Of Oregon 1978 - 2000, Linda H. Edwards

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No abstract provided.

Exploiting Trauma: The So-Called Victim's Rights Amendment, Lynne Henderson

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No abstract provided.

Placebo-Controlled Trials Of New Drugs: Ethical Considerations, David Orentlicher

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No abstract provided.

Gender And Legal Writing: Law Schools’ Dirty Little Secrets, Kathryn M. Stanchi, Jan M. Levine

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While great strides have been made by legal writing professors in the past two decades, many law schools-perhaps most accurately, many law school deans-try to avoid the investments needed to provide their students with professional, high-quality instruction in legal research and legal writing. Law professors, including women law professors, have reacted to their deans' decisions to maintain the status quo largely by quiet acquiescence- although in some cases they openly support that stance. Legal writing seems to be just too hard, and too demanding in time and energy, to be taught by doctrinal law professors, most of whom are men …

Presidential Ethics: Should A Law Degree Make A Difference?, Nancy B. Rapoport

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Two of the nation's most controversial presidents, Nixon and Clinton, were both lawyers, and both of them had ethics-related problems while in office. This essay reviews whether any model ethics rules force lawyer-presidents to behave at a higher standard than non-lawyer-presidents; then it discusses the implications for legal education if we really do want lawyers to go above and beyond the norm of behavior.

Of Cat-Herders, Conductors, Fearless Leaders, And Tour Guides, Nancy B. Rapoport

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This article discusses four distinct approaches to the role of the dean and the pros and cons of each approach.

Politics And Sociology In Federal Civil Rulemaking: Errors Of Scope, Jeffrey W. Stempel

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In April 2000 the United States Supreme Court promulgated a package of Proposed Amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2000, without Congressional intervention. As one commentator observed, “(a)ll of (the proposed amendments) promise to have a significant effect on discovery practice.” One Proposed Amendment--narrowing the scope of discovery available pursuant to Rule 26(b)(1)--was particularly controversial before both the Advisory Committee, the Standing Committee, and the Judicial Conference. Nonetheless, the Proposed Amended Rule narrowing scope proceeded from the Court to finality with no intervention by Congress. Proponents of the change minimized criticism by …

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

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One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

An Inconsistently Sensitive Mind: Richard Posner's Celebration Of Insurance Law And Continuing Blind Spots Of Econominalism, Jeffrey W. Stempel

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Seventh Circuit Judge Richard Posner is well known for bringing economic analysis to bear on a host of issues, including infamously controversial notions such the market for baby sale. Not surprisingly, Posner's insurance law opinions reflect economics, but perhaps not to the degree one would expect. A review of Posner's 20 years of opinions relating to insurance issues reviews his pragmatic jurisprudence as well. Decisions frequently reflect not only economics but also situational context and considerations of business reality as well as a sophisticated grasp of basic insurance doctrine and contract law. As a general matter, Posner also displays considerably …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 2000 and 2001.

Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight

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How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be …

Introduction: Employment Discrimination And The Problems Of Proof, John Valery White, Gregory Vincent

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This is an introduction to articles presented at a symposium on the U.S. Supreme Court’s decision in Reeves v. Sanderson Plumbing Prods. Co. sponsored by the Louisiana Law Review. Presenting papers were five of the leading scholars on employment discrimination law: Professor Catherine J. Lanctot of the Villanova University Law School, Professor Michael Selmi of the George Washington Law School, Professor Linda Hamilton Krieger, University of California at Berkely School of Law, Professor Rebecca Hanner White of the University of Georgia Law School, and Professor Michael Zimmer of the Seton Hall University School of Law. Respondents were the authors and …

Printz, The Unitary Executive, And The Fire In The Trash Can: Has Justice Scalia Picked The Court's Pocket?, Jay S. Bybee

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In Printz v. United States (1997), the Court held that certain sections of the Brady Handgun Violence Prevention Act were unconstitutional. Until the Attorney General set up a national system, the Act required the chief local law enforcement official to make certain background checks. The Court held that Congress exceeded its authority by requiring local law enforcement officials to take this action. Writing for the majority, Justice Scalia “conclude[d] categorically . . . ‘The Federal Government may not compel the States to enact or administer a federal regulatory program.” ’ The Court offered two justifications. First, these commands to the …

Politics, Gay Rights, And The Light At The End Of The Rainbow, Mary Lafrance

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Legal scholars and practitioners concerned about the future of the law rather than merely its present know that successful strategies for advancing the law require not only a facility with the nuts and bolts of legal analysis but a sense of history and an awareness of the ways in which law is shaped by politics, public opinion, cultural norms, and moral and political philosophy.

Challenging those laws that discriminate on the basis of sexual orientation offers one of the most active and exciting undertakings for modern civil rights advocates. The losses are frustrating but the victories are exhilarating. The long-term …

History, Legal Scholarship, And Latcrit Theory: The Case Of Racial Transformations Circa The Spanish American War, 1896-1900, Sylvia R. Lazos

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The period from 1896 to 1900, the period prior to, during, and immediately following the Spanish American War, which became known to Americans as the “splendid little war,” was a momentous time. An in-depth study of this five-year period--the events leading to the Spanish American War, the War itself and its aftermath--yields a rich and deep understanding of themes at the core of LatCrit theory. This is a key turning point in racial formation of Latino/as, American foreign policy, and American democracy. The U.S. abandoned its isolationist stance, and awkwardly embraced its “duty and obligation” as a “benevolent” world power. …

The Lawyering Process Program: Building Competence And Confidence, Terrill Pollman, Jennifer B. Anderson

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In this article, the authors describe the Lawyering Process Program at the William S. Boyd School of Law. Like their colleagues at law schools across the country, students at the Boyd School of Law spend the early part of their law school careers learning the basics of legal research and writing. Unlike many of their fellow IL's, however, Boyd students also learn other important concepts and skills. The Lawyering Process Program at Boyd is a unique, three-semester class that includes significant instruction and experience in four areas: (1) legal writing and analysis; (2) legal research; (3) lawyering skills; and (4) …