Law Commons^™

The Emerging Legal Relationship Between An Investment Banker And Its Client: An Argument For A Fiduciary Relationship, Patrick Garry, Patrick Mcdavitt

Faculty Publications

Fiduciary duty claims are becoming a hot litigation topic. Increasingly, plaintiffs in a variety of commercial situations are suing under some fiduciary duty theory. Formerly, fiduciary duties were only imposed upon persons occupying some special position such as trustee or guardian. Lately, however, the courts, in a limited number of circumstances have begun taking a second look at creating or expanding certain fiduciary duties. There are many legitimate arguments for limiting the extension of the fiduciary duty doctrine. Nonetheless, because of the changing conditions and demands in certain select areas of our commercial world, the imposition of fiduciary duties may …

Expert Discovery In The Eighth Circuit, An Empirical Study, David Day

Faculty Publications

No abstract provided.

Some Reflections On The Golden Anniversary Of The Federal Rules Of Civil Procedure, David Day

Faculty Publications

No abstract provided.

The Incidental Regulation Of Free Speech, David Day

Faculty Publications

No abstract provided.

Aids And The Law, A Guide For The Public [Book Review], Margalynne J. Armstrong

Faculty Publications

No abstract provided.

The Black Hills Case: On The Cusp Of History, Frank Pommersheim

Faculty Publications

No abstract provided.

A Radical Intent, Michael A. Simons

Faculty Publications

(Excerpt)

Much of the recent debate regarding constitutional interpretation has focused on the relevance of the Framers' intent. Attorney General Edwin Meese III has urged judges to "resurrect the original meaning of constitutional provisions." In contrast, Justice William Brennan has argued that courts should adapt the Constitution to "cope with current problems and current needs." A key disagreement involves whether the Bill of Rights protects citizens against state as well as federal government abuses. Some scholars have called for a rollback of Supreme Court decisions that incorporate provisions of the Bill of Rights in the fourteenth amendment, arguing that these …

Pretrial Discovery In The Law School Curriculum: An Analysis And A Suggested Approach, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The topics of pretrial discovery and professional responsibility in the conduct of discovery are given short shrift in many law school classrooms. This is not to say that these topics are ignored by law schools; first-year students are typically acquainted with the concept of broad pretrial discovery in the federal system and the various disclosure tools provided by the Federal Rules of Civil Procedure. Nevertheless, the intricacies of discovery practice and ethics are learned on the job or through continuing legal education programs. Although law schools, in response to criticism by the bench and bar of the general level …

Attorneys’ Fees In Antitrust Litigation: Making The System Fairer, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Section 4(a) of the Clayton Act entitles prevailing plaintiffs in private antitrust actions to recover, in addition to treble damages, their reasonable attorneys' fees. Unique when adopted as part of the Sherman Act in 1890, this fee-shifting provision has been imitated, at least in part, in over 100 federal statutes. In providing for attorneys' fees, Congress intended to promote private enforcement of the antitrust laws and to insulate the treble damages recovery from expenditures for legal fees. Fee-shifting is mandatory where a plaintiff prevails, but the court has some leeway in setting the amount of the fee. The controversy …

The Relevance Of Administrative Considerations In The Judicial Decisionmaking Process: A Kantian Perspective, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This essay examines and analyzes the role of administrative considerations in the judicial decisionmaking process. The central issue is the extent to which administrative factors, such as concerns for efficiency, minimization of complexity, ease of proof, consistency of holdings, and predictability of future decisions, may be properly taken into account by courts in rendering decisions and weighed against rights granted under substantive law. Put another way, the question presented is: To what extent may a court invoke administrative considerations to reach a result different from what otherwise would be the just solution? The analysis will proceed in two steps. …

Student Speech—Free Press In High Schools, Michael A. Simons

Faculty Publications

(Excerpt)

Public educators in the United States are expected to pass on to their students—to inculcate in them—the shared values of their community. This communication of values is essential to the continued vitality of American culture and to the social, moral, and political education of students. Yet inculcation of community values cannot be allowed to trample students' individual liberties; public educators must strike a delicate balance between the state's educational interests and the students' rights to self-expression. Although the striking of this balance should initially be left to local educators, when value inculcation impermissibly interferes with students' constitutional rights, courts …

An Economic Understanding Of Copyright Law's Work-Made-For-Hire Doctrine, I. Trotter Hardy

Faculty Publications

No abstract provided.

The American Constitutional Tradition Of Shared And Separated Powers (Introduction), Gene R. Nichol Jr.

Faculty Publications

No abstract provided.

The Contextual Legitimacy Of Adjudication In Tribal Courts And The Role Of The Tribal Bar As An Interpretive Community: An Essay, Frank Pommersheim

Faculty Publications

No abstract provided.

U.S. Supreme Court: The 1987-88 Term (Part Ii), Paul C. Giannelli

Faculty Publications

No abstract provided.

Procedure For Admitting And Excluding Evidence, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Best Evidence Principle, Dale A. Nance

Faculty Publications

This Article challenges the premises underlying the reasoning in decisions like Gonzales-Benitez. The point is not that the appellants in that case should have prevailed, but simply that the court's treatment of their argument was inadequate. The court should have considered whether the trial court had and abused a discretion to deny admission of the testimony pursuant to a general best evidence principle. At the very least, the court should have justified its implicit assumption that the phrase ‘best evidence’ could only refer, in the context of this case, to the original document rule.

The Dilution Of The First Amendment And The Equality Of Ideas, William P. Marshall

Faculty Publications

No abstract provided.

Corporate Loans To Directors And Officers -- Every Business Now A Bank?, Jayne W. Barnard

Faculty Publications

In most states, a corporation may loan money to an officer or director if the board of directors authorizes the loan and finds that it will "benefit" the corporation. According to Professor Jayne W. Barnard, however, this benefit requirement has proved to be an illusory standard. Barnard reviews existing law on the subject and surveys the executive lending practices of 152 publicly held corporations. She concludes that executive loan enabling statutes have failed to consider the risks involved in making such loans, such as illiquidity, inadequate collateralization, inclination to default, and volatility of the economy. As a result, current laws …

"Front-Running" - Insider Trading Under The Commodity Exchange Act, Jerry W. Markham

Faculty Publications

On ‘Black Monday,’ October 19, 1987, ‘perhaps the worst day in the history of U.S. equity markets,’ the Dow Jones Industrial Average fell by 508 points, representing a loss of approximately $1 trillion in the value of all outstanding United States stocks. In the wake of the crash, numerous studies were conducted and reports published in which a host of regulatory issues were considered, including a disturbing phenomenon called ‘front-running.’ Simply stated, the practice of front-running involves a transaction in a commodity futures contract or a stock option contract by a trader with ‘material’ nonpublic information concerning a ‘block’ transaction …

Book Review Of The Law Of War, Linda A. Malone

Faculty Publications

No abstract provided.

Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins

Faculty Publications

No abstract provided.

Law Professor Trading Cards - Has Anyone Got A Monaghan For A Tribe, Paul A. Lebel

Faculty Publications

No abstract provided.

Executives Raiding The Corporate Cookie Jar, Jayne W. Barnard

Faculty Publications

No abstract provided.

Curbing Management Conflicts Of Interest -- The Search For An Effective Deterrent, Jayne W. Barnard

Faculty Publications

No abstract provided.

Appropriations Redux: A Critical Look At The Fiscal Year 1988 Continuing Resolution, Neal Devins

Faculty Publications

No abstract provided.

Divided We Stand: Concerted Activity And The Maturing Of The Nlra, B. Glenn George

Faculty Publications

No abstract provided.

Judicial Vigilantism: Inherent Judicial Authority To Appoint Contempt Prosecutors In Young V. United States Ex Rei Vuitton Et Fils S.A., Neal Devins, Steven J. Mulroy

Faculty Publications

No abstract provided.

Gender Justice And Its Critics, Neal Devins

Faculty Publications

No abstract provided.

The Constitution Between Friends, Neal Devins

Faculty Publications

No abstract provided.