Law Commons^™

The Entrapment Defense And Procedural Issues: Burden Of Proof, Questions Of Law And Fact, Inconsistent Defenses, Paul Marcus

Faculty Publications

Paul Marcus has produced an extremely thorough article on the intriguing and complex defense of entrapment. After analyzing the subjective and objective approaches to the defense, the author turns to the infrequently addressed question of evidence on predisposition. Included here are the recent ABSCAM cases.

Finally, the author explores the vagaries of inconsistent defenses and, on the whole, provides academics and practitioners with a refreshing and useful guide to some of the most important questions involving entrapment.

California Death Penalty Laws And The California Supreme Court: A Ten Year Perspective, Gerald F. Uelmen

Faculty Publications

No abstract provided.

A Historical Essay On The Conservation Provisions Of The 1985 Farm Bill: Sodbustin, Swampbusting, And The Conservation Reserve, Linda A. Malone

Faculty Publications

No abstract provided.

Resolving The Frye Dilemma: A Reliability Approach, Fredric I. Lederer

Faculty Publications

No abstract provided.

Capital Gains Exception To The House's "General Utilities" Repeal: Further Indigestions From Overly Processed "Corn Products", John W. Lee

Faculty Publications

In this article, Lee first describes the mechanics and tax effects of cost basis corporate acquisitions and analyzes why current tax rules favor such acquisitions over carryover basis acquisition (e .g., tax-free mergers); then he describes the House's proposed repeal in HR 3838 of the General Utilities doctrine in current sections 336-338, focusing on the continued exemption for long-term capital gains of a closely held active business corporation. This sets the stage for analysis of the Corn Products doctrine, which under an "integral asset" reading would deny the exemption to most appreciated operating assets, surely not the intent of the …

Preemption Of State Law Notice Provisions Governing The Recovery Of Attorneys' Fees By Section 506(B) Of The Bankruptcy Code, R. Wilson Freyermuth

Faculty Publications

This note provides a framework for courts and attorneys faced with the issue whether section 506(b) preempts state law notice provisions. The note studies the language and legislative history of section 506(b), pointing out the inconsistencies and ambiguities that make it difficult to determine congressional intent. The note then surveys the various rationales advanced by the lower courts in resolving this issue. Using the recent Fourth Circuit case of Unsecured Creditors' Committee v. Walter E. Heller & Co. to illustrate several of these rationales, the note suggests that a more consistent approach to this issue is needed. After examining the …

Sweatt V. Painter, The End Of Segregation, And The Transformation Of Education Law, Jonathan L. Entin

Faculty Publications

This Article will analyze these aspects of the Sweatt case. Part I describes the facts leading to the litigation. Part II examines the Supreme Court precedents facing Sweatt's attorneys, both in the area of school segregation and in the field of education generally. This section concludes that the Court at best seemed pre- pared only to enforce the Plessy doctrine, and none too rigorously at that. Part III focuses upon the process of making the record at the trial. This section demonstrates how Sweatt's counsel took advantage of ambiguities in the prior cases to lead the Curt to address the …

Thinking About Federal Jurisdiction — Of Serpents And Swallows, Thomas E. Baker

Faculty Publications

In this essay, Professor Baker assumes that the decision to get into or stay in federal court has been made, for whatever reason. His concentration is focused on providing a checklist of some of the typical challenges to jurisdiction and to highlight some uncommon responses. Organizationally, he first considers general issues which apply to all cases, and then considers separately some issues in diversity cases and in federal question cases.

Refusal To License: Monopolization Problems For Patent Owners, Ramon A. Klitzke

Faculty Publications

No abstract provided.

Principles Of Contract Interpretation: Interpreting Collective Bargaining Agreements, Jay E. Grenig

Faculty Publications

No abstract provided.

May A City Put A Taxicab Company Out Of Service Because Of A Labor Dispute?, Jay E. Grenig

Faculty Publications

No abstract provided.

Trade Secrets: Important Quasi-Property Rights, Ramon A. Klitzke

Faculty Publications

No abstract provided.

1985 Survey Of Trends And Developments On Religious Liberty In The Courts, Carl H. Esbeck

Faculty Publications

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty during 1985. Purposely omitted are the widely reported United State Supreme Court opinions, as well as cases where the high court has granted review during its 1985-86 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

Tort Claims Against Churches And Ecclesiastical Officers: The First Amendment Considerations, Carl H. Esbeck

Faculty Publications

Federal and state courts are increasingly confronted with the unenviable task of giving legal definition to matters affecting relations between religion and government.' Many of the lawsuits pitting church against state are surface manifestations of a more fundamental disintegration of an American public philosophy.

Remedying Insurers' Bad Faith Contract Performance: A Reassessment, Robert H. Jerry Ii

Faculty Publications

This article examines the implications of the differing remedies provided by tort and contract law. Part I describes the traditional major duties owed by an insurer to an insured and outlines the remedies currently provided in most jurisdictions for the breach of these duties. Part II gives special attention to the insurer's implied duty of good faith and fair dealing; it reviews the historical origins of the duty and describes the alternative ways to categorize it. Part III argues that the duty of good faith and fair dealing should be treated as a contract duty, but that courts should administer …

Dual Class Capitalization: A Reply To Professor Seligman, George W. Dent

Faculty Publications

Professor Joel Seligman's article, Equal Protection in Share- holder Voting Rights: The One Common Share, One Vote Contro- versy,' is an impressive accomplishment in many respects. It confirms his status as premier historian of our securities laws and markets.2 It also provides a powerful analysis of, and the first se- rious argument against, dual class capitalization, and proposes a thoughtful solution to the problems it raises. Despite these formi- dable assets, some of Professor Seligman's conclusions are debata- ble. First, Professor Seligman argues that the Securities and Exchange Commission (SEC) can impose on the National Associa- tion of Securities Dealers …

Bite Mark Evidence, Paul C. Giannelli

Faculty Publications

No abstract provided.

A Comment On The Supposed Paradoxes Of A Mathematical Interpretation Of The Logic Of Trials, Dale A. Nance

Faculty Publications

This symposium has renewed discussion of the apparent paradox of at- tempting to apply mathematical probabilities to the logic of trials. Brought to academic attention by the stimulating work of L. Jonathan Cohen,' the debate reflects a more general controversy over the virtues of quantifying legal decisionmaking. In this brief comment I do not intend to take sides either in this debate or in the more general controversy. I want only to draw attention to a weakness in the legal interpretations which underlie much of the debate.

The Law Of Confessions: Part Ii, Paul C. Giannelli

Faculty Publications

No abstract provided.

Congressional Standing To Sue: Whose Vote Is This, Anyway?, R. Lawrence Dessem

Faculty Publications

The article is divided into three major sections. Section I traces the development of a separate doctrine of “congressional standing.” It examines the doctrine's development from the Supreme Court's initial consideration of legislative standing through the current opinions of the United States Court of Appeals for the District of Columbia Circuit. Section II then analyzes three possible theories of congressional injury and standing. Derivative, representative, and third-party standing theories are all rejected as a basis for congressional standing. While rejecting the suggestion that congressmen possess a personal interest in “their” votes sufficient to constitute the “distinct and palpable injury” required …

Five Views Of Church-State Relations In Contemporary American Thought, Carl H. Esbeck

Faculty Publications

Views concerning the appropriate relationship between church and state are rapidly becoming almost as numerous as America's religious sects. The Constitution's treatment of religious liberty, thought by many to be a matter long settled, has now erupted into a many-sided debate. Not only lawyers, judges and legal commentators are involved; historians and sociologists, theologians and ecclesiastics, political theorists and statesmen also participate in the debate. It is part of a much larger struggle over a redefinition, or for some a reclamation, of the role of religion in American public life. At times this debate focuses on discrete environments, such as …

1986 Survey Of Trends And Developments In Religious Liberty In The Courts, Carl H. Esbeck

Faculty Publications

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the high court has granted review during its 1986-87 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

When Lawyer And Client Meet: Observations Of Interviewing And Counseling Behavior In The Consumer Bankruptcy Law Office, Gary Neustadter

Faculty Publications

What happens when lawyer and client first meet? How do they talk, how do they listen, what do they say, and what do they do? The answers to these questions are generated, and then lost, in thousands of law offices daily. There is thus a treasure of information, but it is mostly hidden from our view by legal barriers that protect privacy and confidentiality and by other barriers, economic, psychological, and logistical, that inhibit or preclude third party observation of lawyer-client contact. This Article reports an exploratory journey in search of that treasure, a journey into six law offices in …

Judicial Independence And The Rule Of Law, Jonathan Van Patten

Faculty Publications

No abstract provided.

A Judicial Perspective On Expert Discovery Under Federal Rule 26(B)(4): An Empirical Study Of Trial Court Judges And A Proposed Amendment, David Day, Charvin Dixon

Faculty Publications

No abstract provided.

Teaching Constitutional Law: Role-Playing The Supreme Court, David Day

Faculty Publications

No abstract provided.

California's Foreclosure Statutes: Some Proposals For Reform, Cynthia Mertens

Faculty Publications

Spurred by the harsh economics of the Great Depression, California enacted several statutes designed to protect pledgors of real property from unfair and often ruinous deficiency judgments. This legislation includes Code of Civil Procedure sections 580a,the fair value section, 580b,the purchase-money anti-deficiency statute, 580d; the nonjudicial foreclosure anti-deficiency statute, and 726, the "one-action" rule. Three decades of judicial interpretation, however, have created a body of case law which fails to advance the legislative purposes upon which the courts purportedly base their decisions.

The time has come for California to substantially revise its Depression-era anti-deficiency legislation in order to express and …

Droit International De La Santé, Howard C. Anawalt

Faculty Publications

No abstract provided.

The Habit Of Success, Howard C. Anawalt

Faculty Publications

No abstract provided.

Tribal Immunity, Tribal Courts, And The Federal System: Emerging Contours And Frontiers (With Terry Pachota), Frank Pommersheim, Terry Pechota

Faculty Publications

No abstract provided.