Law Commons^™

Punitive Damages And Business Organizations: A Pathetic Fallacy, John J. Kircher

Faculty Publications

No abstract provided.

State Action And The Due Process Of Self-Help: Flagg Bros. Redux, Alan R. Madry

Faculty Publications

No abstract provided.

Building A Pedagogy Of Problem-Solving: Learning To Choose Among Adr Processes, Andrea Kupfer Schneider

Faculty Publications

This essay outlines two areas in which ADR and the pedagogy of ADR remain deficient. The first area is counseling. I argue in this essay that without better counseling prior to, during, and after engaging in ADR processes, the promise of ADR has not been met.

The second issue is the type of counseling and advice that does exist regarding ADR. While ADR proponents argue that ADR makes clients happier, there has not yet been much thought given to analyzing the different potential emotional impacts of the various ADR choices. When we choose and counsel among the ADR processes, we …

Adequacy Of Disclosure Of Restrictions On Flipping Ipo Securities, Royce De R. Barondes

Faculty Publications

This Article examines the implications of this practice under the disclosure obligations imposed by federal securities laws and concludes that the current disclosure is materially misleading, particularly in light of the failure to disclose the selective application of the penalties. Moreover, the selective application of the penalties casts significant doubt on whether these offerings can be considered “fixed price” offerings, which would mean that cursory disclosure of the practice would not suffice.

Is There A Uniform Trust Act In Your Future, David M. English

Faculty Publications

The National Conference of Commissioners on Uniform State Laws (NCCUSL) is close to completing the first comprehensive attempt at the national level to codify the law of trusts-the Uniform Trust Act (Act). This article describes the reasons for the Act and many of its provisions. The Act is scheduled for final reading and approval by NCCUSL during the summer of 2000, meaning that states may begin enacting the Act in its final form in their 2001 legislative sessions. This article is based on the draft discussed at NCCUSL's 1999 annual meeting.

A Little Privacy, Please: Should We Punish Parents For Teenage Sex, Susan S. Kuo

Faculty Publications

This article addresses an alarming new development in the recent trend toward blaming parents for their children's unlawful acts: an Illinois criminal statute that holds parents accountable for the consensual sexual activities of their children. Although laws creating criminal parental responsibility are not new, teenage sexuality is not part of the usual repertoire of juvenile acts that parental responsibility laws have previously sought to deter. The State of Illinois is the sole pioneer in this yet uncharted territory, breaking new ground for the parental responsibility movement and transporting parental liability to new heights.

Other states may view the Illinois statute …

Does The Aedpa Apply To A Habeas Petition Filed After An Exhaustion Of State Remedies?, Jay E. Grenig

Faculty Publications

No abstract provided.

May Private Individuals Sue A State That Establishes English-Only Policies?, Jay E. Grenig

Faculty Publications

No abstract provided.

Marriage Law And Family Law: Autonomy, Interdependence, And Couples Of The Same Gender, Jennifer Wriggins

Faculty Publications

The Article argues for the recognition of same-sex marriage from a normative and family law perspective, rather than a rights perspective. Contemporary family law and marriage law in the United States have been criticized by communitarian scholars and others as being too focused on individuals and individual fulfillment. These critiques make some valid points. It is also important, however, to emphasize that contemporary marriage law, for the first time, presents a model of equality and of reciprocal obligations.

The Article articulates a broad framework of the functions of family and marriage law, drawing on work by Carl Schneider and Mary …

The Cartagena Protocol And Biological Diversity; Biosafe Or Bio-Sorry, Jonathan H. Adler

Faculty Publications

In January 2000, delegates from over 100 nations completed negotiations on an international treaty for the regulation of biotechnology, the Cartagena Protocol on Biosafety. The stated purpose of this protocol is to enhance the protection of biological diversity. Despite its good intentions, there is a mismatch between the protocol's substantive provisions and present threats to biological diversity. The protocol endorses "precautionary" regulation of transboundary shipments of genetically engineered organisms, including crops, so as to reduce the environmental risks that such organisms may pose. The greatest threat to biological diversity is habitat loss, largely driven by the conversion of land for …

Ohio’S Dna Databank Statute, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 2000 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Are Prosecutorial Ethics Standards Different?, Kevin C. Mcmunigal

Faculty Publications

Once a prosecutor determines to employ an expert, a number of distinct decisions must be confronted-from choosing the expert, to complying with discovery obligations, to presenting the testimony at trial. Part I of this essay considers the selection of experts. Although improper selection of experts can be viewed as merely another aspect of presenting misleading testimony, we treat it separately in this essay because the literature typically ignores it. Part 1I examines the pretrial disclosure of scientific evidence. The issues that have arisen in this context include late disclosure, omitting information from laboratory reports, declining to have a report prepared, …

Beneficial And Unusual Punishment: An Argument In Support Of Prisoner Participation In Clinical Trials, Sharona Hoffman

Faculty Publications

Currently, approximately 1.8 million people are incarcerated in the United States at any given time. A disproportionately large percentage of the prisoner population has serious illnesses, such as AIDS and tuberculosis. Prisoners most often, however, are barred from participation in clinical trials, even when conventional therapy has failed, and experimental treatment might provide them with their only hope of survival.

Much of the reluctance to include prisoners in biomedical research is based on history. In the past, prisoners have been severely abused and even tortured in medical studies conducted in the Nazi death camps, Japanese prisoner camps, and correctional facilities …

Empirical Implications Of Title I, Michael Ashley Stein

Faculty Publications

No abstract provided.

On Children And Dual Nationality: Sabet And The Islamic Republic Of Iran, Nancy Amoury Combs

Faculty Publications

The Iran-United States Claims Tribunal's recent decision in Sabet and The Islamic Republic of Iran sheds new light on difficult issues concerning the dual nationality of minors. In particular, the case was the first in which the Tribunal determined minor dual national claimants to have a dominant and effective nationality different from that of either of their parents. Further, the Tribunal broke new ground in its analysis of 'the caveat,' an equitable doctrine that can bar the claims of dual nationals. This article applauds the Tribunal's advances in its caveat jurisprudence and develops a new approach that would further those …

The Pathology Of Property Norms: Living Within Nature's Boundaries, Lynda L. Butler

Faculty Publications

No abstract provided.

The Tools For Enforcing International Criminal Justice In The New Millennium: Lessons From The Yugoslavia Tribunal, Michael P. Scharf

Faculty Publications

It is one thing to create an international institution devoted to enforcing international justice; it is quite another to make international justice work. Unlike the Nuremberg Tribunal, whose orders were implemented by the Allied occupation forces, the ICC will have no constabulary. In the absence of a direct enforcement mechanism, the ICC will have to rely on state cooperation and indirect means of inducing compliance with its arrest orders and requests for judicial cooperation.

The range of enforcement measures potentially available to the ICC include: (1) condemnation of non-cooperation by the Assembly of State Parties or the U.N. Security Council; …

A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii

Faculty Publications

In December 1999, the United States Sentencing Commission (Commission), an institution that had been in suspended animation for over a year with all seven voting seats vacant, fluttered its eyelids and came back to life. An agreement between the Senate and the White House produced seven new Commissioners: five sitting federal judges, the former General Counsel of the Commission, and a law professor. The new group began work immediately, making itself accessible in meetings with lawyers and judges around the country, exuding an air of intelligence and collegiality, and dispensing in short order with a backlog of amendments to the …

Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii

Faculty Publications

The central innovation of the guidelines sentencing revolution has been the creation of a regime in which facts other than those required for conviction have necessary consequences at sentencing. In days of yore, judges mulling a sentence were entitled to receive information from virtually any source on virtually any subject, but they were never obliged to pass public judgment on the truth or falsity of what they heard because no finding of fact could constrain their discretion to set a sentence anywhere within the boundaries set by statutory maxima and minima. No more. The project of the original United States …

Charitable Choice And The Critics, Carl H. Esbeck

Faculty Publications

First, the statute prohibits the government from discriminating with regard to religion when determining whether providers are eligible to deliver social services under these programs. Second, the statute imposes on government the duty not to intrude into the religious autonomy of faith-based providers. Third, the statute imposes on both government and participating FBOs the duty not to abridge certain rights of the ultimate beneficiaries of these programs. I will touch on these three principles below, and do so in reverse order.

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.

Statutory Rape Law And Enforcement In The Wake Of Welfare Reform, Rigel C. Oliveri

Faculty Publications

The recent national efforts at reforming the welfare system and new research on the connection between teen pregnancy and statutory rape have led many states to enact stricter laws against statutory rape and to increase the enforcement of existing laws. Punitive statutory rape laws are being viewed more and more as a mechanism for shrinking the welfare rolls by reducing teen pregnancy. Rigel Oliveri documents the resurgence of statutory rape law and enforcement and explores the ramifications it will have on teen parents. In particular, Oliveri approaches the issue from several analytical frameworks, discussing arguments for consent-based standards, the privacy …

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben

Faculty Publications

Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right …

The Insurer's Right To Reimbursement Of Defense Costs, Robert H. Jerry Ii

Faculty Publications

This Article examines the theoretical justification for the insurer's asserted right to reimbursement of defense costs incurred in defending noncovered claims. Part I sketches some details about the duty to defend which are necessary prerequisites to exploring any claim to a right of reimbursement. Part II discusses the rationale offered by most courts and commentators for recognizing the right to reimbursement: under the law of restitution, the insurer who defends a noncovered claim bestows a benefit on the policyholder which, in justice, ought to be returned. This Part concludes that a reasoned argument can be made in support of the …

Reclaiming The "Creatures Of The State": Contracting For Child Custody Decisionmaking In The Best Interests Of The Family, E. Gary Spitko

Faculty Publications

Arbitration has great potential utility for promoting family autonomy. Parents in a fracturing family might utilize arbitration to select both the decisionmaker and the legal standards to guide that decisionmaker in resolving their child custody and visitation dispute. In this way, the parents can seek to ensure that the resolution of their child custody and visitation dispute is governed by the values that the family has cherished and lived by.

The present dominant judicial approaches to the enforcement of arbitration agreements and awards with respect to child custody, however, greatly undermine arbitration's utility for promoting family autonomy. Pursuant to the …

Transition Losses In The Electric Power Market: A Challenge To The Premises Underlying The Arguments For Compensation, Lois R. Lupica

Faculty Publications

In this Article, Professor Lois R. Lupica examines whether the electric utility industry, currently j.n the midst of deregulation, ought to sustain the resulting transition losses. Due to the signifi· cant modification of legal rules affecting the electric power market and changes in regulatory policy, the utilities currently have expenditures and expectations that are unrecoverable in a competitive market. In recent years, momentum has moved in the direction of compensating the electric utilities and their investors for these losses. Professor Lupica challenges the arguments for transition loBS recovery and ultimately concludes that the doctrinal premises in support oftransition loss recovery …

Circumvention Of The Bankruptcy Process: The Statutory Institutionalization Of Securitization, Lois R. Lupica

Faculty Publications

The Article 9 changes address two fundamental issues relevant to securitization transaction participants: (i) the characterization of the asset transfer, and (ii) the clarity and certainty of the process taken to perfect the transferee's interest in the assets. These changes will eliminate some of the uncertainty that asset-backed security investors and securitization originators face. What the Article 9 changes will also do, however, when read in conjunction with the amendments to the Bankruptcy Code, will be to allow certain financial market participants to avoid participation in the bankruptcy process, notwithstanding their provision of financing to a debtor in bankruptcy. A …

Parental Rights Termination Jurisprudence: Questioning The Framework, Jennifer Wriggins

Faculty Publications

The article analyzes the Supreme Court’s decision in M.L.B. v. S.L.J., 519 U.S. 102 (1996), which held that where a state provides an appeal from a judgment terminating parental rights, it must, under the due process and equal protection clauses provide indigent appellants with a transcript if a transcript is necessary to review the decision. In doing so, it questions the framework used to analyze parental rights termination decisions. Specifically, it questions the sharp line drawn between cases concerning termination of parental rights (in which parents have certain constitutional protections) and cases concerning child custody (in which parents lack those …