Law Commons^™

The Ethics Of Judicial Decision-Making Regarding Custody Of Minor Children: Looking At The Best Interests Of The Child" And The "Primary Caretaker" Standards As Utility Rules, Kathryn Mercer

Faculty Publications

This article will examine how a judge's ethical framework can influence the outcome of a custody award, even where the same "child-centered" standard is ostensibly being used. This article uses three cases from the Supreme Court of Nebraska to demonstrate that the "best interests of the child" standard can be used: 1) to award a parent custody because parents have near absolute rights (an example of rule deontology); 2) to deny a parent custody because the par ent is unfit (an example of rule utilitarianism); or 3) to deny a parent custody because the child's life needs stability (an example …

2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker

Faculty Publications

No abstract provided.

Tax Notes By Any Other Name Would Smell Sweeter, Erik M. Jensen

Faculty Publications

Those of us with academic careers at stake must take the bull by the horns, damn the torpedoes, and gather no moss. Let's get the Tax Notes name changed.

Tyrannous Lex, Thomas E. Baker

Faculty Publications

Professor Baker presents a fundamentally unique question. Including all of the legal opinions, statutes and administrative rules, how much law do we have? Is there way to calculate a “Gross Legal Product” for the United States and what effect does this “GLP” have on the U.S. economy? What about all of the secondary legal sources? What do they add, if anything, to our ability to understand all of the law that is constantly being produced? All these and more are the subject of Professor Baker’s article.

United States Supreme Court: 1997 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Character Is Everything: Promoting Ethical Excellence In Sports, Paul M. Anderson

Faculty Publications

No abstract provided.

Book Review: Intellectual Property In Europe, Ramon A. Klitzke

Faculty Publications

No abstract provided.

Book Review: Competition Regulation In The Pacific Rim, Ramon A. Klitzke

Faculty Publications

No abstract provided.

“Of Crime And The River (Of Appeals)”: When Can A Federal Habeas Court Raise State Procedural Bars On Its Own Motion?, Daniel D. Blinka

Faculty Publications

No abstract provided.

Professional Sports Franchise Relocations From Private Law And Public Law Perspectives: Balancing Marketplace Competition, League Autonomy, And The Need For A Level Playing Field, Matthew J. Mitten, Bruce W. Burton

Faculty Publications

No abstract provided.

Foreward To Sports Law As A Reflection Of Society's Laws And Values, Matthew J. Mitten

Faculty Publications

No abstract provided.

Electronic Discovery: Making Your Opponent's Computer A Vital Part Of Your Legal Team, Jay E. Grenig

Faculty Publications

No abstract provided.

"Practical Inconvenience" Or Conceptual Confusion: The Common-Law Genesis Of Federal Rule Of Evidence 703, Daniel D. Blinka

Faculty Publications

No abstract provided.

The "Original Intent" Of U.S. International Taxation, Michael M. O'Hear, Michael J. Graetz

Faculty Publications

No abstract provided.

Book Review: Religion In Public Life: A Dilemma For Democracy, Scott C. Idleman

Faculty Publications

No abstract provided.

Is A Prosecutor Who Gives Sworn, But False, Statements To Obtain An Arrest Warrant Entitled To Absolute Immunity From Suit?, J. Gordon Hylton

Faculty Publications

No abstract provided.

Are Alabama Sheriffs County Officials For Purposes Of Local Governmental Liability Under Federal Civil Rights Law?, J. Gordon Hylton

Faculty Publications

No abstract provided.

“Cram Down” In Bankruptcy: Is A Secured Creditor Entitled To Replacement Value, Foreclosure Value, Or The Average Of The Two?, Ralph C. Anzivino

Faculty Publications

No abstract provided.

Remorse, Cooperation, And "Acceptance Of Responsibility": The Structure, Implementation, And Reform Of Section 3e1.1 Of The Federal Sentencing Guidelines, Michael M. O'Hear

Faculty Publications

No abstract provided.

A Constitutional Case For Governmental Cooperation With Faith-Based Social Service Providers, Carl H. Esbeck

Faculty Publications

This Article will refer to separationism as based on "older assumptions." The Court's presuppositions concerning the nature and contemporary value of religion and the proper role of modem government underlie what will be referred to as a "traditional analysis" of the case law. Part I is a partial overview of the Supreme Court's cases since Everson, and has the goal of making the strongest arguments-within the framework of separationism-for the constitutionality of governmental welfare programs that permit participation by faith-based social service providers.

Part II is about separationism's major competitor, a theory centered on the unleashing of personal liberty to …

Consent, Contract, And The Responsibilities Of Insurance Defense Counsel, Robert H. Jerry Ii

Faculty Publications

This paper examines some of the assumptions on which many contemporary assessments of defense counsel's relationship with the insurer and the policyholder rest, contends that some of the current turmoil in this area is traceable to shaky assumptions, and argues that the drafting of clearer liability insurance contracts would add stability to the relationships. Part I briefly describes the current uncertainty confronting policyholders and defense counsel. Part II explores what the most widely-used liability insurance contracts say about the responsibilities of insurance defense counsel, examining both the context in which these policies are sold and the texts themselves. It contends …

Romer V. Evans And The Permissibility Of Morality Legislation, S. I. Strong

Faculty Publications

In the late 1950s and early 1960s, two of England's most respected jurists engaged in an on-going debate that would take the legal world by storm. The debate concerned whether and to what extent morality should be reflected in the law and was instigated by the publication of the Wolfenden Report, a study presented to Parliament as it considered whether to repeal certain antisodomy laws in Great Britain. On the one hand was Lord Patrick Devlin, a Lord of Appeal in Ordinary later elevated to the House of Lords, Britain's highest court. Devlin opposed the conclusions contained in the Wolfenden …

"Let's Call It A Draw": Striker Replacements And The Mackay Doctrine, Rafael Gely, Leonard Bierman

Faculty Publications

In a recent article we discuss the issue of the use of permanent replacements for striking employees under the National Labor Relations Act (NLRA) Our discussion focuses on the efficiency aspects of the seminal 1938 case of NLRB v. Mackay Radio and Telegraph Co. In the article, we propose a “negotiations” approach, which we argue is likely to result in a more economically efficient interpretation of the Mackay doctrine. As has been the case with other proposals made with respect to this very contentious issue, our proposal has confronted some criticism. Professor William R. Corbett, in a recent piece in …

Reasonable Accommodations And Awkward Compromises: Issues Concerning Learning Disabled Students And Professional Schools In The Law School Context, Lisa A. Eichhorn

Faculty Publications

Under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, colleges and universities are prohibited from discriminating against qualified students with learning disabilities and must reasonably accommodate such disabilities so that students have a genuine opportunity to complete academic programs successfully. Not surprisingly, just like their non-disabled peers, a number of learning disabled college graduates are choosing to enter professions such as law and medicine. Their entry into professional schools has raised a number of legal issues concerning their qualification to matriculate, their need for accommodations, and their eventual ability to practice successfully. …

Mixed Motives: Are City Council Members Absolutely Immune From Civil Rights Liability For Legislative Acts Taken For Both Lawful And Unlawful Reasons?, Jay E. Grenig

Faculty Publications

No abstract provided.

The American Legal Faith: Traditions, Contradictions And Possibilities, David Ray Papke

Faculty Publications

No abstract provided.

Reinvigorating Autonomy: Freedom And Responsibility In The Supreme Court's First Amendment Jurisprudence, Christina E. Wells

Faculty Publications

Part I of this Article explores the conception of autonomy that scholars have generally attributed to the Court and discusses problems with that conception. Part II sets forth an alternative, Kantian conception of autonomy and discusses its implications for a system of laws regulating free expression. Part III analyzes the Court's free speech jurisprudence and its autonomy rationale. It specifically examines both the Court's distinction between content-based and content-neutral regulations of speech and its approach to low-value speech, demonstrating that they reflect a Kantian notion of autonomy. Finally, Part IV discusses the implications of Kantian autonomy for hate speech regulation, …

American Innocence, Robert N. Strassfeld

Faculty Publications

The sad fact is that our relationship to torture and other atrocities is more complicated and less innocent than we or President Bush would like to believe. This article examines that relationship and the ways in which we try to distance ourselves from torture and atrocity. Part II briefly explores our notions of exceptionalism and innocence. Part III then turns to our efforts to evade responsibility for torture and atrocity. First, it briefly discusses ways in which we try to deny our own acts of torture and abuse through rhetorical misdirection and by relegating torture to the shadows. Part III's …

Legitimacy And The Useful Arts, Craig Allen Nard

Faculty Publications

The fundamental question this Article addresses is who should be primarily responsible for making patent validity determinations: the courts5 or the Patent and Trademark Office (“PTO”)?6 Which entity *517 would best serve the constitutional goal of promoting the progress of the useful arts?

Terry V. Ohio At Thirty: A Revisionist View, Lewis R. Katz

Faculty Publications

In this Article, I suggest that, while the Warren Court provided a needed tool to police, it failed to achieve its stated purpose of tying the practice to the Fourth Amendment reasonableness standard. First, the Court failed to adequately define an "investigatory stop," leading later courts to harden the definition, eliminating the Fourth Amendment from most on-the-street police-citizen encounters. Second, the facts in Terry failed to meet the reasonableness standard Chief Justice Warren purported to apply and which subsequently has been further weakened in later cases. Finally, the decision in Terry failed to strike a meaningful Fourth Amendment balance between …