Law Commons^™

Efficient Remedies For Breach Of Warranty, Kenneth Chapman, Michael J. Meurer

Faculty Scholarship

This article attempts to suggest valuable refinements and extensions of the economic theory of warranty by explicitly considering the choice of remedies for breach of warranty in conjunction with the choice of warranty protection itself. In particular, it offers explanations for the prevalence of replacement terms rather than refund terms in warranties. Economists studying the general issue of breach of contract have noted that the choice of remedy has important implications for risk sharing, renegotiation, transaction-specific investment, and the incentive to breach.5 This article derives much of its insight from the recognition that work on the economics of contract breach …

Dispute Over The United States’ Denial Of A Visa To Yasir Arafat, Sadiq Reza

Faculty Scholarship

On November 26, 1988, the United States denied a visa to Yasir Arafat, Chairman of the Executive Committee of the Palestine Liberation Organization (PLO), when he sought to enter the United States to attend the forty-third session of the United Nations (UN) in New York. The denial rekindled a forty-year-old dispute between the United States and the UN over the extent to which the United States may, under the terms of the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations (Headquarters Agreement), restrict entry to persons seeking to enter the …

Aids, Astrology, And Arline: Towards A Casual Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program]."' In School Board v. Arline, the Supreme Court held that a school teacher with a history of infectious tuberculosis was an "individual with handicaps" protected by section 504, and that the determination of whether she was "otherwise qualified" to teach elementary school required a sound medical assessment of the risks of contagion posed by …

The Supreme Court, Privacy, And Abortion, George J. Annas

Faculty Scholarship

Although states can regulate abortions after the point of fetal viability (or, more accurately, can restrict the induction of premature birth), since Roe only 13 states have enacted laws to restrict such abortions.8 Decisions after Roe In more than a dozen major cases over the succeeding 15 years, the Supreme Court applied Roe to specific attempts by some states to limit abortion rights during the first and second trimesters. [...]1989, the Court consistently struck down almost all such limitations. The Court did find it constitutional, however, for the state and federal governments to refuse to fund abortions through the Medicaid …

The Politics Of Transplantation Of Human Fetal Tissue, George J. Annas

Faculty Scholarship

Research involving human fetal tissue has been the subject of intense political debate in this country for almost two decades, and the use of fetal tissues in transplantation continues this controversy in another forum. Since Roe v. Wade ,1 the landmark decision on abortion by the U.S. Supreme Court in 1973, the federal government has focused public attention on fetal research by creating panels of experts. "3 This conclusion was accepted on a vote of 15 to 2, and included recommendations that the decision to abort be kept independent of the decision to retrieve and use fetal tissue, that recipients …

Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks …

Qualified Immunity In Section 1983 Cases: The Unanswered Questions, Kit Kinports

Faculty Scholarship

Part I of this Article describes the general policies underlying qualified immunity and the Court's decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald's impact on the substantive content of the qualified immunity defense: Is immunity available to the defendant who actually knows that her conduct is infringing the plaintiff's constitutional rights, even if the law governing those rights is not yet clearly established? And should a court take into account the nature of the defendant's governmental responsibilities and other circumstances surrounding her conduct in determining whether the right she …

Monopoly Sports Leagues, Stephen F. Ross

Faculty Scholarship

This Article argues that the government should break up both Major League Baseball and the NFL to provide for competing economic entities in each sport. Part I details the harm monopoly sports leagues cause in several different markets and explains why a competitive league structure can correct such harms. Part II discusses why regulatory solutions are poor substitutes for competition as a means of redressing these harms. Part III explains why neither baseball nor football is a "natural monopoly" and argues that no persuasive evidence suggests that rival leagues cannot exist in those sports. Part IV examines how the antitrust …

Reaganist Realism Comes To Detriot, Stephen F. Ross

Faculty Scholarship

Part I of this article discusses Detroit Newspapers and explains how in deferring to the Attorney General's interpretation of the Newspaper Preservation Act, Judge Silberman disregarded every applicable technique of statutory interpretation typically used to resolve the issue. Indeed, each of these techniques suggests that Attorney General Meese's interpretation of the Act was incorrect. This part of the article also demonstrates why deference to Meese was particularly inappropriate in light of the generally accepted justifications for judicial deference to administrative interpretations of statutes.

Part II explains that Detroit Newspapers is one of several opinions by conservative Reagan judicial appointees that …

Computer Programs As Applied Scientific Know-How: Implications Of Copyright Protection For Commercialized University Research, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

Foreword: The Vanishing Constitution, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Constitution Is Not ‘Hard Law’: The Bork Rejection And The Future Of Constitutional Jurisprudence, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Contradiction Between Soviet And American Human Rights Doctrine: Reconciliation Through Perestroika And Pragmatism, Doriane Lambelet Coleman

Faculty Scholarship

No abstract provided.

The Rebuilding Of Duke University's Law School, 1925-1947, Part 2, Robert F. Durden

Faculty Scholarship

No abstract provided.

"Willfulness" And "Ignorance" In Federal Criminal Law, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Stereotypic Alchemy: Transformative Stereotypes And Antidiscrimination Law, Madeline Morris

Faculty Scholarship

No abstract provided.

Environmental Quality: Three Ways To Decide How Much To Spend, Marcia R. Gelpe

Faculty Scholarship

Federal and state laws limiting environmental emissions reflect three approaches to deciding how much money to spend on improving environmental quality. The balancing approach estimates the benefits of limiting emissions and the costs of meeting various limits, then sets limits at levels where benefits justify costs. The cost ignoring approach sets emissions limits at levels necessary to prevent environmental harm, without considering the costs of meeting those limits. Technology-based standards limit emissions to levels attainable using the best pollution control technology, as long as no significant environmental effects are known to occur at those levels. In this article, the author …

To Have And Have Not: Assessing The Value Of Social Science To The Law As Science And Policy, David L. Faigman

Faculty Scholarship

No abstract provided.

Appellate Reversal For Insufficient Evidence In Criminal Cases: The Interaction Of The Proof And The Jury Charge, Malinda L. Seymore, Mark Thielman

Faculty Scholarship

Garrett's disturbing outcome is the most egregious in a series of decisions promulgated by the Texas Court of Criminal Appeals during the past decade. The result is the product of a sufficiency of evidence analysis in which appellate courts compare the evidence presented to the jury charge alone. Such a sufficiency review exceeds the constitutional safeguards announced by the United States Supreme Court. While a state may provide greater rights than those protected by the federal constitution, doing so in this situation represents poor policy and ill-conceived law. This article will explore various methods for analyzing sufficiency of evidence and …

Completing Equity's Conquest? Reflections On The Future Of Trial Under The Federal Rules Of Civil Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

After Professional Virtue, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Abortion, Incommensurability, And Jurisprudence, Joan C. Williams

Faculty Scholarship

No abstract provided.

There Is No Archbishop Of Science - A Comment On Elliot's Toward Incentive-Based Procedure: Three Approaches For Regulating Scientific Evidence, Robert L. Schwartz

Faculty Scholarship

As is usual when Professor Elliott writes about turning retrospective judge-oriented procedural rules into prospective attorney-oriented procedural incentives, his proposal for dealing with scientific testimony not accepted within the scientific community is both interesting and provocative. It also serves as an apology for those judges who are so in awe of science that they believe that only they or their peers in the scientific establishment-and not the common folk selected for jury service-are likely to understand the complex truths that science yields. Professor Elliott starts with the assumption that there is a need for some kind of judicial intervention to …

Privacy And The Regulation Of The New Reproductive Technologies: A Decision-Making Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

This article maps out the territory that must be explored in this very complex area and analyzes the implications of governmental regulation of the new reproductive technology. It suggests that the central issue for analysis is the extent to which authority to make decisions concerning reproductive potential should be allocated to individuals rather than to the government. The article describes approaches to allocating decision-making authority with respect to procreative issues. The first is a rights-based approach which emphasizes individual autonomy; this approach will not permit governmental regulation which interferes with personal autonomy in decision making, at least without good reason. …

More Than 'Shreds And Patches': California's First Bill Of Rights', Christian G. Fritz

Faculty Scholarship

This article examines the formation of the Bill of Rights--or Declaration of Rights as it was entitled--in Californias 1849 constitution. It analyzes the sources drawn upon to fashion that Bill of Rights and how the drafters of California's first constitution understood the process and purpose of incorporating fundamental principles into a nineteenth century constitution. While those drafters borrowed from existing models and constitutional provisions, considerably more than simple copying was going on. With some notable exceptions, the delegates to that convention did not craft original subjects of protection. They did, however, display an acute awareness of the significance of the …

Law And Community On The Mexican California Frontier: Anglo-American Expatriates And The Clash Of Legal Traditions, 1821-1846 By David J. Langum, G. Emlen Hall

Faculty Scholarship

Law and Community on the Mexican California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846. By David J. Langum. (Norman: University of Oklahoma Press, 1987. xii + 308 pp. Illustrations, tables, appendixes, notes, bibliography, index. $30.00.)

A Reconsideration Of Instream Appropriative Water Rights In California, Brian E. Gray

Faculty Scholarship

No abstract provided.

"In Search Of Bigfoot": The Common Law Origins Of Article X, Section 2 Of The California Constitution, Brian E. Gray

Faculty Scholarship

No abstract provided.

A Primer On California Water Transfer Law, Brian E. Gray

Faculty Scholarship

No abstract provided.

Early Neutral Evaluation: The Second Phase, David I. Levine

Faculty Scholarship

No abstract provided.