Law Commons^™

Robert Mcnamara And The Art And Law Of Confession: ‘A Simple Desultory Philippic (Or How I Was Robert Mcnamara’D Into Submission)’, Robert N. Strassfeld

Faculty Publications

This Article examines McNamara's "confession" and the public response to it within the context of an American tradition of confession in law and literature. Part I traces that tradition to the criminal conversion narratives and gallows speeches of colonial New England. Puritan society had clear expectations of what it took to make a good confession, and the Article identifies these rules for confession. It also examines the functions of confession in that society and argues that these confessions had several social consequences, including easing the consciences of those implicated in the criminal's punishment; bolstering civil and religious authority; warning the …

Rationing Expensive Lifesaving Medical Resources, Maxwell J. Mehlman

Faculty Publications

In this Article, Professor Mehlman examines the possible systems for rationing expensive lifesaving medical technologies. First, he concludes that the costs of any rationing system probably exceed its benefits. Consequently, he rejects the rationing of expensive but available lifesaving medical technologies. Second, he argues that the increased availability of the technologies and the recent expansion of patient rights to sue will result in a substantial number of judicial challenges to rationing. Finally, he suggests detailed criteria to aid the courts in deciding whether a resource has been improperly rationed.

Guidance Rules And Enforcement Rules: A Better View Of The Cathedral, Dale A. Nance

Faculty Publications

Contemporary economic analysis of law is a product of the confluence of standard microeconomics with a legal tradition heavily influenced by American Legal Realism. The effect of this merger has been an analysis of legal institutions from the perspective of the Holmesian "bad man," who sees predicted legal actions as merely various expected material costs or benefits to be taken into account. This might be illuminating for the purposes of an "outsider," such as a sociological behaviorist or perhaps even a legal advisor alerting her "bad man" client to the risks of adverse legal consequences. But it produces bizarre results …

The Supreme Court’S Misleading Footnote In General Dynamics, Erik M. Jensen

Faculty Publications

This article examines footnote 3 in the Supreme Court's 1987 opinion in United States v. General Dynamics. In that case, governed by the law in place before the Tax Reform Act of 1984, the Court held that General Dynamics had to defer deductions attributable to claims for employee medical expenses until the claims were approved. In the footnote, the Court suggested that the 1984 amendment to section 461(h) of the Internal Revenue Code postponing the time for deducting accrued expenses until economic performance would, in a similar case governed by the statutory change, have further deferred General Dynamics' deduction until …

The Automobile Exception Transformed: The Rise Of A Public Place Exemption To The Warrant Requirement, Lewis R. Katz

Faculty Publications

The Supreme Court in recent years has aggressively pursued restrictions on a person's Constitutional protections from unreasonable searches and seizures. Perhaps no better example exists of the radically changing fourth amendment analysis than the automobile exception to the warrant requirement This exception allows a law enforcement official with probable cause to believe that evidence of a crime is hidden in a vehicle to search that vehicle without obtaining a search warrant This Article explores the genesis and unchecked growth of the automobile exception from a necessary outgrowth of the exigencies of protecting police officers and preventing tampering with evidence, to …

Presumed Consent To Organ Donation: A Reevaluation, Maxwell J. Mehlman

Faculty Publications

his paper examines the presumed consent approach from a practical, legal and ethical perspective. It concludes that presumed consent for harvesting cadaveric organs a may be a viable policy alternative, but that research in a number of specific areas is needed before the policy can be endorsed.

Reshaping The Precontractual Liability Debate: Beyond Short-Run Economics, Juliet P. Kostritsky

Faculty Publications

This article responds to three recent treatments of precontractual bargaining by Professors Richard Craswell and Avery Katz and Mr. Wouter vils: Richard Craswell, Offer, Acceptance, and Efficient Reliance, 48 STAN. L. REv. 481 (1996); Avery Katz, When Should An Offer Stick? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 YALE L.. 1249 (1996); and Wouter Wils, Who Should Bear the Costs of Failed Negotiations? A Functional Inquiry Into Precontractual Liability, 4 JOURNAL DES EcONOMsMs Er DES ETUDES HUMAINES 93 (1993).

Judicial Review Of Customs Service Actions, Peter M. Gerhart

Faculty Publications

This article is based on a report prepared for the Administrative Conference of the United States in connection with its study of judicial review of actions taken by the U.S. Customs Service. The recommendations herein were adopted in substantially identical form by the Administrative Conference at its September 19, 1977, plenary session. The article examines the present availability and scope if review of administrative decisions of the U.S. Customs Service. The author analyzes the overall operation if the Customs Service, procedures for internal review of Customs ,decisions and for assessment of penalties and other sanctions, and the distribution if jurisdiction …

Appendix To Guest Editor's Observations: A Proposal For A Consolidated Theft/Fraud Guideline, Frank O. Bowman Iii

Faculty Publications

Professor Frank Bowman proposed the following consolidated theft/fraud guideline to the U.S. Sentencing Commission in October 1997. The proposal is explained in detail in a forthcoming law review article, Coping With Loss”: A Re-Examination of Federal Economic Crime Sentencing Under the Guidelines, 51 Vanderbilt L. Rev. -- (April 1998).

Christian Constitutions: Do They Protect Internationally Recognized Human Rights And Minimize The Potential For Violence Within A Society? A Comparative Analysis Of American And Irish Constitutional Law And Their Religious Elements, S. I. Strong

Faculty Publications

Section II of this Article studies in greater detail the religio-legal debate currently being waged in American courts and legislatures, including a brief discussion of the religio-legal history of the United States. Section II also describes how the United States resembles and differs from Ireland such that subsequent comparisons will be more accurate. Section III compares the two constitutions by analyzing the provisions and policies most influenced by religion. First, general principles of sovereignty and constitutional interpretation are reviewed to understand the general constitutional framework of each nation. Second, the manner in which personal rights are treated by each nation's …

Preparing The New Law Graduate To Practice Law: A View From The Trenches, Rodney J. Uphoff, James J. Clark, Edward C. Monahan

Faculty Publications

Most legal educators reject the premise that the primary mission of the law school is to train law students to practice law. Rather, most law professors claim that their primary function is to teach students to think like lawyers. To many commentators, however, the academic community's antipractice attitude has spawned an unhealthy dichotomy between theory and practice, a division within the academic community, and a chasm between law schools and the practicing bar. Moreover, this dissonance or gap between law school and practice significantly contributes to the fact that most law graduates are substantially unprepared to function as lawyers when …

Sistema Da Justiça Criminal Nos Estados Unidos Da América Uma Visāo Resumida, Paul Marcus

Faculty Publications

No abstract provided.

Report Of The Task Force On Rule 102(E) Proceedings: Rule 102(E) Sanctions Against Accountants, Dixie L. Johnson, John H. Sturc, Kenneth B. Winer, Jayne W. Barnard, Evan J. Falchuk, Jeffrey T. Gilleran, Thomas Gorman, David B. Hardison, Gloria K. Niemi, Thomas L. Riesenberg

Faculty Publications

No abstract provided.

Swapping Amnesty For Peace: Was There A Duty To Prosecute International Crimes In Haiti?, Michael P. Scharf

Faculty Publications

By examining the political realities of the Haiti situation and the applicable provisions of treaty and customary law, this Article seeks to assess whether the Haitian amnesty did indeed achieve "a proper mix." To this end, the Article begins with a description of the abuses reportedly committed by Haiti's military regime and the international community's attempts to restore the democratically-elected govemment to power. Next, it explores the policy arguments for and against amnesty as applied to the Haitian situation and analyzes the scope of both the Haitian amnesty law and President Aristide's amnesty decree. This section is followed by a …

Note, Beyond The Rhetoric Of Comparative Interest Balancing: An Alternative Approach To Extraterritorial Discovery Conflicts, Michael P. Scharf

Faculty Publications

In recognition of these deficiencies of comparative interest balancing, this note proposes not a better rule of law, but rather a more realistic and coherent process for extraterritorial decisionmaking in cases involving conflict between discovery and foreign blocking statutes. This note focuses on the distinction between interest balancing within the realm of "private law" and "public law." The critical difference lies in the fact that interest balancing in public law cases has operated as a means of asserting the primacy of U.S. interests'' in the guise of applying a "jurisdictional rule of reason." Although courts profess to apply a comparative …

The Jury Is Still Out On The Need For An International Criminal Court, Michael P. Scharf

Faculty Publications

In 1989, the United Nations General Assembly proclaimed the 1990s to be "The Decade of International Law." Moreover, 1990, which witnessed both the devolution of the Cold War and the effective use of the United Nations to coalesce universal support for international action against Iraq for its invasion of Kuwait, was a year of renewed optimism for international institutions. It is therefore fitting that proposals for an international criminal court should, at this time, get a fresh look from the international legal community. Towards this end, in the words of the U.S. Representative to the United Nations Sixth (Legal) Committee …

Child Care Policy And The Welfare Reform Act, Peter R. Pitegoff

Faculty Publications

This article sketches the 1996 Welfare Reform Act's major changes with particular attention to federally subsidized child care for low-income families.

Guest Editor's Observations: Back To Basics: Helping The Commission Solve The "Loss" Mess With Old Familiar Tools, Frank O. Bowman Iii

Faculty Publications

Roughly one-quarter of all convicted federal defendants are sentenced for some kind of economic crime.1 There is an emerging consensus that the provisions of the federal sentencing guidelines devoted to economic crime do not work very well, a consensus that has created a powerful momentum for significant change. This Issue of FSR is about whether the guidelines concerning economic offenses, principally §2B1.1 (Theft) and §2F1.1 (Fraud), should be materially altered, and if so, how. The debate that has been joined over this question is technically complex and philosophically challenging. There are disagreements over issues as particular as when collateral posted …

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Carl H. Esbeck

Faculty Publications

It is often said that America's founding was an experiment in government. Certainly few features of the American constitutional settlement left more to future chance--and were more of a break with existing European patterns--than the Establishment Clause set out in the First Amendment. The new Republic sought to rely on transcendent principles to justify its unpre-cedented advancements in human liberty. Concurrently, the Founders reject ed any official or fixed formulation of these principles, for no public credo was to be established by law. So it is more than just a little ironic that the nation's most cherished human rights depend …

Whose Team Are You On? My Team Or My Team?: The Nlra's Section 8(A)(2) And The Team Act, Rafael Gely

Faculty Publications

This article analyzes employee participatory programs from the internal labor markets perspective. Internal Labor Markets (“ILM”) refer to the explicit or implicit agreements between employer and employees incorporating rules governing wages, working hours, promotion opportunities and grievance procedures. In order to function properly, ILMs require employees to learn skills that are valuable to the contracting firm, but are of much lesser value elsewhere. Employees agree to acquire such “firm-specific” skills and employers agree to subsidize the training needed to obtain these new skills. It is a mutually beneficial arrangement: employers expect to observe increases in productivity and efficiency and employees …

Environmental Inequity: Economic Causes, Economic Solutions, Thom Lambert, Christopher Boerner

Faculty Publications

The article examines one such shortcoming: namely, that existing research fails to account for the dynamic nature of the housing market. Analyzing data from the St. Louis metropolitan area, this study finds that economic factors--not siting discrimination--are behind many claims of environmental racism. This phenomenon suggests the need to develop public policies that fit the economic nature of the problem. In particular, a policy that compensates individuals living near industrial sites is the key to securing environmental justice.

Public Justice: Toward A State Action Theory Of Alterative Dispute Resolution, Richard C. Reuben

Faculty Publications

Various forms of alternative dispute resolution (ADR) are increasingly taking the place of litigation to resolve disagreements among parties. ADR is frequently imposed by court rule or legislative command for certain types of cases, or compelled by courts when private parties contract to use ADR. To date, ADR doctrine has focused on the structural issues attendant to bringing these processes into the mainstream of American dispute resolution. This Article contends that courts must now address the question of whether ADR-both court-related and contractual-can constitute state action, and therefore be subject to constitutional restraints. The author surveys the history and modern …

Justice Scalia As A Modern Lord Devlin: Animus And Civil Burdens In Romer V. Evans, S. I. Strong

Faculty Publications

In the late 1950s and early 1960s, the legal world was captivated by an ongoing debate between two of England's most respected jurists regarding whether and to what extent morality should be reflected in the law. The debate 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. Lord Patrick Devlin, then a Lord of Appeal in Ordinary and later elevated to the House of Lords, Britain's highest court, opposed the conclusions contained in the Wolfenden Report and supported the continuation of the antisodomy …

Finding The Right Target, Richard C. Reuben

Faculty Publications

It is no surprise that the most significant handgun control law passed by Congress has produced a potential blockbuster case before the U.S. Supreme Court. After all, intense debate has been going on for years over the extent of the right to bear arms under

the Second Amendment. Congress took more than a decade to pass the Brady Handgun Control Act of 1993, 18 U.S.C. § 922(s), named for James Brady, the press secretary to President Reagan who was wounded in a 1981 assassination attempt. But while a pair of cases challenging the Brady Act might have been expected to …

Unraveling The Tangled Web: Choosing The Proper Statute Of Limitation For Breach Of The Implied Covenant Of Good Faith And Fair Dealing, Tyler T. Ochoa, Andrew Wistrich

Faculty Publications

In this article, we first will review the general principles applicable to classification of claims for limitation purposes and the various statutes which could be applied to breach of the implied covenant of good faith and fair dealing. We then will examine cases in which the statute of limitation for breach of the implied covenant of good faith and fair dealing was at issue and analyze what limitation period, rules of accrual and tolling doctrines are appropriate in the absence of contractual modification. Finally, we will analyze the extent to which contractual modification of the limitation period, rules of accrual …

Genetics, Iq, Determinism, And Torts: The Example Of Discovery In Lead Exposure Litigation, Jennifer Wriggins

Faculty Publications

This article discusses a disturbing development in tort litigation in which defendants use deterministic, genetics-based ideas about individuals and their families to undercut and deflect attention from personal injury claims. Lead exposure litigation involving cognitive injuries claimed on behalf of children who have ingested lead paint is the context of this development. The most extreme manifestation to date has been the efforts in several states to compel relatives of lead-exposed children (usually mothers) to have IQ and psychological testing, even though they are not parties to the litigation. Rule 35 of the Federal Rules of Civil Procedure and its state …

Dr. Seuss, The Juice And Fair Use: How The Grinch Silenced A Parody, Tyler T. Ochoa

Faculty Publications

No abstract provided.

International Human Rights Protection Against Psychiatric Political Abuses, George J. Alexander

Faculty Publications

No abstract provided.

Contracts For Grownups, William J. Woodward Jr.

Faculty Publications

No abstract provided.

Wards Cove Packing Or Not Wards Cove Packing? That Is Not The Question: Some Thoughts On Impact Analysis Under The Age Discrimination In Employment Act, Mack Player

Faculty Publications

No abstract provided.