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Of Flutes, Oboes And The As If World Of Evidence Law, Richard O. Lempert Dec 1997

Of Flutes, Oboes And The As If World Of Evidence Law, Richard O. Lempert

Articles

Reading Allen's article, I am reminded of a cold war parable I heard during the 1960s. It concerned a flute and an oboe who joined an orchestra one year and immediately set to quarrelling. The flute was distressed because whenever it was playing at its lyrical best the oboe would enter. drowning it out. The oboe was affronted because its deepest, most sonorous passages were invariably ruined by the high-pitched flute butting in. When the orchestra split up for the summer and these quarrelsome instruments went their separate ways, the flute, as it angrily contemplated the oboe, found itself stretching …


Testing Testing, Carl E. Schneider Jul 1997

Testing Testing, Carl E. Schneider

Articles

Last year, Congress passed the Ryan White Care Act Amendments of 1996. The amendments authorize ten million dollars for each fiscal year from 1996 through 2000 for counseling pregnant women on HIV disease, for "outreach efforts to pregnant women at high risk of HN who are not currently receiving prenatal care," and for voluntary testing for pregnant women. The amendments compromise a central question: whether prenatal and neonatal AIDS testing should be compelled. The compromise is complex. The director of the Centers for Disease Control and Prevention is instructed to establish a system for states to use to discover and …


After The Dna Wars: Skirmishing With Nrc Ii, Richard O. Lempert Jul 1997

After The Dna Wars: Skirmishing With Nrc Ii, Richard O. Lempert

Articles

This article traces some of the controversies surrounding DNA evidence and argues that although many have been laid to rest by scientific developments confirmed in the National Research Council's second DNA report, there remain several problems which are likely to lead to continued questioning of standard ways prosecutors present DNA evidence. Although much about the report is to be commended, it falls short in several ways, the most important of which is in its support for presenting random match probabilities independent of plausible error rates. The article argues that although one can sympathize with the NRC committee's decision as an …


Playing The "Culture Card": Trials In A Mutli-Cultural Democracy, Richard O. Lempert Apr 1997

Playing The "Culture Card": Trials In A Mutli-Cultural Democracy, Richard O. Lempert

Articles

As I write, the racial divide in America is said to be greater than at any time in the past 25 years.' Two events are blamed: the O.J. Simpson criminal trial and the Louis Farrakan led "Million Man March." That these events should exacerbate racial division is extraordinary. The Farrakan led march brought together between 400,000 and 800,000 black males to pledge that they would take the kind of responsibility for their actions and their families that white Americans have long argued they should take. The O.J. Simpson trial was more a "who done it" than a racial morality play. …


U.S. International Treatment Of Financial Derivatives, Reuven Avi-Yonah, Linda Swartz Mar 1997

U.S. International Treatment Of Financial Derivatives, Reuven Avi-Yonah, Linda Swartz

Articles

The current proposals to substitute consumption for income as the principal U.S. tax base have already been the topic of considerable commentary in these pages. However, one issue has received relatively little attention in the discussion of the various reform proposals: What potential complications are likely to arise if a single major player in the world's economy unilaterally adopts radical tax reform? The global economy is becoming more and more unified, with multinational corporations dominating world trade and trillions of dollars in portfolio investment flowing across national boundaries. In this economy, what would be the consequences if a single country, …


To End Deferral As We Know It: Simplification Potential Of Check-The-Box, Reuven Avi-Yonah Jan 1997

To End Deferral As We Know It: Simplification Potential Of Check-The-Box, Reuven Avi-Yonah

Articles

On December 17, 1996, the Treasury Department issued final regulations under section 7701 of the Internal Revenue Code implementing the regime dubbed "check-the-box," under which taxpayers can elect to be treated as corporations or as passthrough entities for U.S. tax purposes. The purpose of this article is to argue that the adoption of these regulations affords a momentous opportunity for Congress to achieve significant simplification of the notoriously complex U.S. international tax rules. Fundamentally, the adoption of check-the- box means that U.S. taxpayers will be able to elect whether or not their foreign-source active income will enjoy deferral from current …


The Jurisprudence Of Yogi Berra, Edward H. Cooper, Grace C. Tonner Jan 1997

The Jurisprudence Of Yogi Berra, Edward H. Cooper, Grace C. Tonner

Articles

Lawrence Peter "Yogi" Berra was born on May 12, 1925, in St. Louis, Missouri, and grew up to become one of baseball's all-time greats. Yogi played nineteen years in the Major Leagues, eighteen with the New York Yankees and one with the New York Mets He has been called the greatest Yankee catcher ever. During his career, Yogi played in a record fourteen World Series and was elected the American League's Most Valuable Player three times. Following his playing career, Yogi managed both the Yankees and the New York Mets, and coached the Yankees, Mets, and Houston Astros. He received …


Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White Jan 1997

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.


Irrelevance, Minimal Relevance, And Meta-Relevance (Response To David Crump), Richard D. Friedman Jan 1997

Irrelevance, Minimal Relevance, And Meta-Relevance (Response To David Crump), Richard D. Friedman

Articles

Professor Crump's analysis runs the full traverse from academic theorizing to practical observation. I will attempt to follow him over the same course, addressing three questions among the congeries that he raises. First, is it true that all evidence satisfies the minimalist definition of relevance? Second, should evidentiary codes include a tighter definition of relevance? Third, how should we assess lawyers' use of evidence that, loosely speaking, is irrelevant?


The Cathedral' At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab Jan 1997

The Cathedral' At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab

Articles

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …


The A Student Who Gave Up The Law For Baseball, Yale Kamisar Jan 1997

The A Student Who Gave Up The Law For Baseball, Yale Kamisar

Articles

When the head coach of the University of Michigan baseball team resigned suddenly, University officials started looking around for a replacement. Then several people told the Athletic Director about an outstanding candidate in his own backyard. It turned out that a young man who had coached baseball both at Ohio Wesleyan University and Allegheny College and then been a catcher for several major league baseball clubs (before his throwing arm went dead) was a student in the Law School. After receiving glowing reports about the young man (let's call him by his first two initials, W.B.), the Athletic Director offered …


Gluttony, William I. Miller Jan 1997

Gluttony, William I. Miller

Articles

Gluttony does not have the grandeur of pride, the often brilliant strategic meanness of envy and avarice, the glory of wrath. It does manage to gain some small allure by its association with lust, its sexy sibling sin of the flesh. Yet there is something irrevocably unseemly about gluttony, vulgar and lowbrow, self-indulgent in a swinish way. Gluttony is not the stuff of tragedy or epic. Imagine Hamlet too fat to take revenge or Homer making his topic the gluttony of Achilles rather than his wrath. With gluttony, compare pride and anger, sins that mark the grand action of revenge, …


Dealing With Evidentiary Deficiency, Richard D. Friedman Jan 1997

Dealing With Evidentiary Deficiency, Richard D. Friedman

Articles

Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency. Ariel Porat and …


Crime, Politics, And Race (Symposium: Justice And The Criminal Justice Process), Samuel R. Gross Jan 1997

Crime, Politics, And Race (Symposium: Justice And The Criminal Justice Process), Samuel R. Gross

Articles

The biggest problem with the criminal justice system is that too many crimes are committed-too many rapes, too many murders, too many robberies; too much violence that inflicts an untold amount of suffering and destruction on too many people. If that seems obvious, what follows should be equally obvious. The most important step to take to solve the problems of the criminal justice system is to reduce the number of crimes that are committed: to prevent crimes. The best thing we can do to help the victims of crime is to keep them from becoming victims in the first place. …


Polygamy And Same-Sex Marriage, David L. Chambers Jan 1997

Polygamy And Same-Sex Marriage, David L. Chambers

Articles

In the American federal system, state governments bear the responsibility for enacting the laws that define the persons who are permitted to marry. The federal government, throughout our history, has accepted these definitions and built upon them, fixing legal consequences for those who validly marry under state law. Only twice in American history has Congress intervened to reject the determinations that states might make about who can marry. The first occasion was in the late nineteenth century when Congress enacted a series of statutes aimed at the Mormon Church, prohibiting polygamy in the Western territories and punishing the Church and …


The Takings-Puzzle Puzzle, James E. Krier Jan 1997

The Takings-Puzzle Puzzle, James E. Krier

Articles

My aim here is to unpack the regulatory takings problem in a way that suggests why it is intractable. The idea is to reveal some of the different types of ambiguity necessarily entailed in takings cases. Seeing these ambiguities, we readily can understand why the doctrine in this area is so confused and confusing; why there is, in short, a "takings puzzle." To my mind, it is much more difficult to understand why anyone would expect matters to be otherwise. This oddity I call the "takings-puzzle puzzle."


Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman Jan 1997

Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman

Articles

It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief under …


An Interdisciplinary Seminar In Child Abuse And Neglect With A Focus On Child Protection Practice, Suellyn Scarnecchia Jan 1997

An Interdisciplinary Seminar In Child Abuse And Neglect With A Focus On Child Protection Practice, Suellyn Scarnecchia

Articles

Given the myriad of professionals involved in protecting children from abuse and neglect, legal practice in the field of child protection requires an understanding of the various disciplines these professionals represent. Professor Scarnecchia argues that such an understanding is necessary in order for the attorney to serve as a zealous advocate for her client. In hopes of creating this understanding in students at the University of Michigan, an interdisciplinary seminar in child abuse and neglect has been created. Professor Scarnecchia details the substantive content of the seminar, discussing specific issues that arise in protecting children. She explains that by using …


Towards A (Bayesian) Convergence?, Richard D. Friedman Jan 1997

Towards A (Bayesian) Convergence?, Richard D. Friedman

Articles

If I understand them correctly, several leading Bayesioskeptics (Allen, Callen, Stein) acknowledge - with varying degrees of specificity and varying degrees of grudgingness - that standard probability theory can be useful as an analytical tool in considering evidentiary doctrines and the probative value of evidentiary items.


The Virtue Of Speed In Bankruptcy Proceedings, James J. White Jan 1997

The Virtue Of Speed In Bankruptcy Proceedings, James J. White

Articles

In my opinion the principal difficulty with Chapter 11 is that it gives strong incentives to various Chapter 11 players to distort the priorities that were intended by Congress.


Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud Jan 1997

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.


Chief Justice Hughes' Letter On Court-Packing, Richard D. Friedman Jan 1997

Chief Justice Hughes' Letter On Court-Packing, Richard D. Friedman

Articles

After one of the great landslides in American presidential history, Franklin D. Roosevelt took the oath of office for the second time on January 20, 1937. As he had four years before, Chief Justice Charles Evans Hughes, like Roosevelt a former governor of New York, administered the oath. Torrents of rain drenched the inauguration, and Hughes’ damp whiskers waved in the biting wind. When the skullcapped Chief Justice reached the promise to defend the Constitution, he “spoke slowly and with special emphasis.” The President responded in kind, though he felt like saying, as he later told his aide Sam Rosenman: …


Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine Jan 1997

Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine

Articles

Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …


Marriage Today: Legal Consequences For Same Sex And Opposite Sex Couples, David L. Chambers Jan 1997

Marriage Today: Legal Consequences For Same Sex And Opposite Sex Couples, David L. Chambers

Articles

Laws that treat married persons in a different manner than they treat single persons permeate nearly every field of social regulation in this country -- taxation, otrts, evidence, social welfare, inheritance, adoption, and on and on.


Answering The Bayesioskeptical Challenge, Richard D. Friedman Jan 1997

Answering The Bayesioskeptical Challenge, Richard D. Friedman

Articles

In recent years, some scholars of evidence, myself among them, have made active use of subjective probability theory - what is sometimes referred to as Bayesianism - in thinking about issues and problems related to the law of evidence. But, at the same time, this use has been challenged to various degrees and in various ways by scholars to whom I shall apply the collective, if somewhat misleading, label of Bayesioskeptics. I present this brief paper to defend this use of probability theory, and to discuss what I believe is its proper role in discourse about evidentiary issues.


International Taxation Of Electronic Commerce, Reuven S. Avi-Yonah Jan 1997

International Taxation Of Electronic Commerce, Reuven S. Avi-Yonah

Articles

This article submits proposals for taxing the digital economy on the basis of the benefits and single tax principles.


Confrontation And The Definition Of Chutzpa, Richard D. Friedman Jan 1997

Confrontation And The Definition Of Chutzpa, Richard D. Friedman

Articles

You may know the standard illustration of chutzpa - the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish - the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same …


Selecting And Designing Effective Legal Writing Problems, Grace C. Tonner, Diana Pratt Jan 1997

Selecting And Designing Effective Legal Writing Problems, Grace C. Tonner, Diana Pratt

Articles

Legal research and writing courses are unlike most substantive first year law school classes in that they teach using the problem method. The success of a legal writing course depends on the quality of the problems. The purpose of this article is to provide some guidance for legal writing professors in designing legal writing problems. The article addresses (1) general considerations in problem design, (2) designing expository problems, (3) designing persuasive problems, and (4) sources of problems. In the first section, we discuss problem design as it relates to the overall goals for teaching the basic forms of legal analysis, …


Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud Jan 1997

Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …


Making International Refugee Law Relevant Again: A Proposal For Collectivized And Solution-Oriented Protection, James C. Hathaway, R. Alexander Neve Jan 1997

Making International Refugee Law Relevant Again: A Proposal For Collectivized And Solution-Oriented Protection, James C. Hathaway, R. Alexander Neve

Articles

International refugee law is in crisis. Even as armed conflict and human rights abuse continue to force individuals and groups to flee their home countries, many governments are withdrawing from the legal duty to provide refugees with the protection they require. While governments proclaim a willingness to assist refugees as a matter of political discretion or humanitarian goodwill, they appear committed to a pattern of defensive strategies designed to avoid international legal responsibility toward involuntary migrants. Some see this shift away from a legal paradigm of refugee protection as a source for enhanced operational flexibility in the face of changed …