Law Commons^™

Cloning People: A Jewish Law Analysis Of The Issues, Michael J. Broyde

Faculty Articles

This Article is an attempt to create a preliminary and tentative analysis of the technology of cloning from a Jewish law perspective. Like all preliminary analyses, it is designed not to advance a rule that represents itself as definitive normative Jewish law, but rather an attempt to outline some of the issues in the hope that others will focus on the problems and analysis found in this Article and will sharpen or correct that analysis. Such is the way that Jewish law seeks truth.

In the case of cloning-as with all advances in reproductive technology- the Jewish tradition is betwixt …

Full Faith And Credit And The Equity Conflict, Polly J. Price

Faculty Articles

As this Article relates, the current problem with interstate en­forcement of injunctions and other equitable decrees is illustrated by the Court's confusion in Baker. The Court reached the correct result in the case before it, but the basic problems of "equity con­flict" remain unresolved. Both the Court's opinion and the two con­currences were unsatisfactory because the Court failed to address the key underlying issue of whether or to what extent courts may rely on state law to enjoin extraterritorial conduct. Had the Court focused on this issue, I argue, it could have based its decision upon a more appealing rationale. …

Teach In Context: Responding To Diverse Student Voices Helps All Students Learn, Paula Lustbader

Faculty Articles

This article uses quotes from interviews with diverse students as a spring board to discuss contextualized learning theory and teaching strategies to enhance student learning. Students must relate new information to their own experience; develop ideas about the new information; and articulate their understanding of it. In other words, to fully understand something, students must be able to relate to it, own it, and translate it. To help students do this, the article discusses and provides examples of three concrete teaching strategies: experiential learning exercises, writing exercises, and collaborative exercises.

Dreaming In Black And White: Racial-Sexual Policing In The Birth Of A Nation, The Cheat, And Who Killed Vincent Chin?, Robert S. Chang

Faculty Articles

Professor Chang observes that Asians are often perceived as interlopers in the nativistic American "family." This conception of a nativist "family" is White in composition and therefore accords a sense of economic and sexual entitlement to Whites, ironically, even if particular beneficiaries are recent immigrants. Transgressions by those perceived to be "illegitimate," such as Asians and Blacks, are policed either by rule of law or the force of sanctioned vigilante violence. Chang illustrates his thesis by drawing upon the three films referenced.

The P.R.C.'S Negotiable Instruments Law: An Instrument For Facilitating Private Economic Activity Or Monetary Control?, Kara Phillips, Amy Sommers

Faculty Articles

This article discusses China’s market reforms, and how negotiable instruments have played an increasingly important role in China’s economy. The Negotiable Instruments Law, which came into effect January 1, 1996, consists of seven chapters, covering General Provisions, Drafts, Promissory Notes, Checks, Applicability of the Law to Foreign Negotiable Instruments, Legal Responsibilities, and Supplementary Provisions. This article illustrates that while the Negotiable Instruments Law constitutes a comprehensive financial statute; its scope is narrow in that it addresses negotiable instruments primarily in the context of banking transactions. This is especially apparent in the case of promissory notes that are regulated solely in …

Gender Bias In The American Bar Association Journal: Impact On The Legal Profession, Marilyn Berger, Kari A. Robinson

Faculty Articles

The ABA Journal presents women in the legal system in a similar fashion to the presentation of women in the journals of other professions. Women are portrayed in traditional sex roles, they are pictured passively and they are often shown negatively as victims. In the volumes the authors studied, they found that the numbers of images of attorneys, judges and professors were not proportionate to the number of men and women in the legal profession. Moreover, the ABA Journal predominantly displayed women as dependent on their male counterparts. The authors also found instances where the ABA Journal portrayed women as …

America’S Preoccupation With Ethics In Government, Vincent R. Johnson

Faculty Articles

Many Americans today expect that the law can, should, and will be used to ensure a level playing field in public life. Americans expect the law to eliminate, insofar as possible, any unfair advantage that might be gained through the use of special connections to those who exercise the power of government. There are numerous rules applicable to judges, lawyers, and public officials that each seek to promote equal treatment for all persons by limiting the ability of persons to use special connections and privileged relationships to gain an advantage in public affairs.

There were two threads of development in …

Resurrecting The General Utilities Doctrine, Lily Kahng

Faculty Articles

This article examines the finance literature exploring the causes and consequences of takeovers and concludes that the policies underlying General Utilities repeal were misguided. This article finds that repeal of the General Utilities doctrine has made inefficient acquisitions more attractive while making efficient ones less attractive. Furthermore, repeal of the General Utilities doctrine has reduced the attractiveness of the most efficient means by which managers can divest themselves of the product of their past acquisitiveness. This article concludes that certain aspects of the doctrine should be reinstated.

Castles In The Sand: Balancing Public Custom And Private Ownership Interests On Oregon’S Beaches, Steven W. Bender

Faculty Articles

Although much has been written about Oregon's unique legacy of public privilege to use private beaches, scholarship has tended to focus on articulation as well as spirited critique of the custom doctrine. More recently, commentators have addressed the question of whether the public's beach rights can withstand scrutiny under the constitutional takings doctrine. In contrast, this article assumes that the custom doctrine is sufficiently embedded in Oregon's history and case law as precedent to withstand reconsideration of the doctrine and to constitute a background principle of state law for purposes of the takings doctrine. With these assumptions, the article examines …

The Guardian Ad Litem In Child Custody Cases: The Contours Of Our Judicial System Stretched Beyond Recognition, Raven Lidman, Betsy Hollingsworth

Faculty Articles

This article discusses the role of the guardian ad litem, as Part I dissects each of the five potential guardian ad litem roles: Lawyer, Expert Witness, investigator/Lay Witness, Mediator/Facilitator, and Party. For each role, this section explores: how the well-known role is typically performed within the court system as a whole; how that role might be performed in a custody case, consistent with its occurrence elsewhere in the judicial system; and how that role, when held by a guardian ad litem, actually is performed in a custody context. Part II endeavors to explain how the guardian ad litem figure has …

The Dream That Will Not Die: Martin Luther King, Jr., And The Continuing American Revolution, Henry Mcgee

Faculty Articles

Professor Henry W. McGee, Jr. reviews Bearing the Cross: Martin Luther King, Jr. and the Southern Christian Leadership Conference, By David J. Garrow. Bearing the Cross depicts Dr. Martin Luther King, Jr., while neither a lawyer nor a judge, belonged in the pantheon of American constitutional giants. From the Gethsemane of an Alabama jail, Dr. King carried the cross of freedom to the steps of the Lincoln Memorial, and ultimately to his own crucifixion on the balcony of a Memphis motel. The story of how a black Baptist minister caused the Constitution to be applied to all Americans is one …

Who's Afraid Of Tiger Woods?, Robert S. Chang

Faculty Articles

Responding to media celebrations on the 50th anniversary of Jackie Robinson’s breaking of the color barrier in Major League Baseball that portray America’s battle for racial justice having been won, this article posits putting racially diverse sport stars on a pedestal misleading. This goes on to ask and explain what sports represent in a democratic society and how Tiger Woods forces us to ask the ‘race’ question. Finally, the article discusses multiracialism and LatCrit scholarship.

Standing On The Corner--Trying To Find Our Way, W. H. Knight

Faculty Articles

In this article, the author outlines academic presentations that have evoked in him a particularly emotional response. The effectiveness and importance of these presentations is judged by their groundedness, as they deal with the topic of law intersecting with the everyday lives of ordinary people. Generally, the author draws attention to a theme of social justice in academia.

“To Learn And Make Respectable Hereafter:” The Litchfield Law School In Cultural Context, Andrew Siegel

Faculty Articles

This article details the historical moment in which the Law School emerged, sketching both the political and social structure of colonial Connecticut and the multifaceted crisis facing that state's leaders in the late eighteenth and early nineteenth centuries. It describes the response of Litchfield's elite to this unfolding crisis, focusing in detail on the innovative institutions they founded and nurtured during this period, including the Law School and the Litchfield Female Academy. The article then attempts to place the Law School in historical and cultural context, providing, sequentially, an exploration of the social vision propounded in its classroom, a brief …

Law’S Alienation: Furies And Nomoi And Bears (And Nuns), Emily A. Hartigan

Faculty Articles

The inclusion of spirit in the law is necessary because the exclusion of the spirit from the law separates the law from its dynamic source of animation. The inclusion of the spirit or spirituality with the law will better allow the United States to craft laws and policies designed to address undocumented workers and illegal aliens.

Even Socrates wrote about the separation of spirit and the law when he wrote about the Nomoi and the Furies; however, he also discussed his Daemon, an inner voice enters into dialogue with the Nomoi, the law. This inner voice that was essential for …

American Family Law: History -- Whostory, Ana M. Novoa

Faculty Articles

Family law should be rooted in preserving and protecting intimate relationships; instead, it is rooted in preserving those domestic systems that created or expanded the economic empire of the "Founding Fathers," the white males of the colonial northeast. This northeastern colonial perspective continues to underpin most of the basic assumptions in family law. Concurrently, with the increased privatization of the cooperative virtues, Americans have developed an excessive preoccupation with self and a cult of consumerism.

Consumerism has driven American society toward increased individualism and narcissism. A by-product of the increased individual-consumer culture is the mistaken belief that our personal values …

Representation Elections, Anti-Semitism And The National Labor Relations Board, John W. Teeter Jr, Christopher Burnett

Faculty Articles

The use of anti-Jewish propaganda in labor representation elections undermines employee freedom and workplace democracy. This Judeopathic practice has proved to be a vexing problem for both the National Labor Relations Board (“the Board”) and the federal courts. The Board has been haphazard and lax in applying the doctrine of Sewell Manufacturing Co. in cases involving anti-Semitism, whereas the federal appellate courts have applied Sewell more consistently to purge elections of anti-Jewish misconduct. This divergence between the Board and reviewing courts may be the result of a pattern of nonacquiescence on the part of the Board. There are four fundamental …

The Government Contractor Defense: Breaking The Boyle Barrier, Charles E. Cantú, Randy W. Young

Faculty Articles

The government contract defense, known as the Boyle defense, shields those successfully invoking it from liability for injuries caused by defective products they manufactured. The contract specification defense is afforded to both private and government contractors when they follow the directions and specifications of a third party, usually the employer.

The first element of the Boyle defense requires that the government approve reasonably precise specifications for the equipment’s design. The contractor must show that a team-like effort existed in all communications between the contractor and the government, with the government providing general specifications and approval at various stages of project …

The Ethics Of Communicating With Putative Class Members, Vincent R. Johnson

Faculty Articles

The ethical prohibition against contact with represented persons is an exacting rule. It carries with it the threat of serious consequences, including, but not limited to, attorney discipline, disqualification of counsel, and inadmissibility of evidence obtained in violation of its terms. However, there are still important unresolved questions relating to the interpretation of the rule, including its proper operation in class action litigation.

Following analysis, the various rationales offered in support of the rule fail to justify an application of the contact ban to communications with unnamed putative class members during the pre-certification period of class action litigation. Absent a …

Ethical Campaigning For The Judiciary, Vincent R. Johnson

Faculty Articles

No abstract provided.

Insurance Contracts And Judicial Discord Over Whether Liability Insurers Must Defend Insureds’ Allegedly Intentional And Immoral Conduct: A Historical And Empirical Review Of Federal And State Courts’ Declaratory Judgments—1900–1997, Willy E. Rice

Faculty Articles

Each year in America, an estimated $200 billion is spent purchasing third-party liability insurance. Fairly recent findings reveal that although some carriers try to settle third-party claims, an unacceptable number of liability companies simply refuse to settle or defend third-party suits. Each year, thousands of consumers and insurers petition state and federal courts for declaratory relief. The simple question asked in these cases is: do liability insurers have a duty to defend policyholders when third-party complainants only allege that insureds committed immoral or intentional acts?

Plaintiffs’ lawyers, defense counsels, state and federal judges, and state legislators and insurance commissioners should …

Disturbing The Peace, Emily A. Hartigan

Faculty Articles

When concerns of race, gender, and orientation intersect with the Catholic faith and church, the interaction can prove painful and difficult. Experiences of feeling judged or condemned ricochet between camps, the members of each desperate to defend that which they feel is inherent to them, to their identities and self-understanding. But despite the damage that Catholicism can and has inflicted by its striction and history, it retains a mode of outreach to the disaffected—La Virgen, dark and female and still only just coming to be understood. She is controversial and always subject to attempts at political manipulation, but she is …

Resurrection Of The Prohibition On The Corporate Practice Of Medicine: Teaching Old Dogma New Tricks, Andre Hampton

Faculty Articles

The corporate practice of medicine doctrine was a creature of the organized medical profession, state legislatures, and the courts in an effort to both protect the physician-patient relationship and help physicians operate as fiduciaries. It aimed at improving the reputation of the medical profession by prohibiting entanglements between a physician’s professional judgment and the profit-making endeavors of lay organizations. The doctrine found its genesis in ethical codes promulgated by the American Medical Association (AMA), which essentially prevented physicians from taking salaried positions, or splitting professional fees, with lay organizations. The rationale was that such a doctrine was necessary in order …