Law Commons^™

Arbitral Adjudication: A Comparative Assessment Of Its Remedial And Substantive Status In Transnational Commerce, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for disputes in private international commerce. Its adjudicatory features respond well to the sui generis dispute resolution needs of international commercial contracts. Most significantly, an arbitration agreement acts as an elaborate choice-of-forum clause. It allows the parties to satisfy their need for a predictable and effective dispute resolution process by creating a more realistic and workable framework that supersedes the fundamentally parochial alternative proffered by national legal systems. The party autonomy principle that underlies arbitration gives the contracting parties the power to fashion a remedial process tailored …

Third Party Standing, Henry Paul Monaghan

Faculty Scholarship

Traditional constitutional theory posits a narrow conception of the issues that a litigant properly may assert. A litigant may invoke only his own constitutional rights or immunities; he may challenge a statute only in the terms in which it is applied to him; and, in the application process, courts have broad power to construe the relevant statutory language so as to avoid constitutional difficulties. The Yazoo case is perhaps the best known example of judicial adherence to these canons. There, a railroad claimed that a statute mandating speedy settlement of "all claims for lost or damaged freight" contravened the fourteenth …

The Perplexing Borders Of Justification And Excuse, Kent Greenawalt

Faculty Scholarship

This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral …

Criminal Coercion And Freedom Of Speech, Kent Greenawalt

Faculty Scholarship

This essay about constitutional limits on criminal coercion concerns a piece of a larger puzzle; how freedom of expression impinges on crimes that involve communication. The essay has two interrelated purposes. One is to reach some rather specific conclusions about the kinds of coercive threats that enjoy constitutional protection and to suggest how legislative formulations of criminal coercion can minimize coverage of such threats. The second purpose, more general and theoretical, is to show how the boundaries of freedom of expression can be understood and how courts can employ those boundaries to arrive at specific tests of constitutional protection. The …

The Press And The Public Interest: An Essay On The Relationship Between Social Behavior And The Language Of First Amendment Theory, Lee C. Bollinger

Faculty Scholarship

I would like to explore in this essay one aspect of the contemporary American debate over the theory of freedom of speech and press. The subject I want to address is this: whether the principle of freedom of speech and press should be viewed as protecting some personal or individual interest in speaking and writing or whether it should be seen as fostering a collective or public interest. Sometimes this issue is stated as being whether the first amendment protects a "right to speak" or a "right to hear," though in general the problem seems to be whether we should …

The Uniform Marital Property Act: Some Suggested Revisions For A Basically Sound Act, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

Should Courts Require The Internal Revenue Service To Be Consistent?, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Property And Support Rights Of Unmarried Cohabitants: A Proposal For Creating A New Legal Status, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

Compensation, Deterrence, And The Market As Boundaries For Derivative Suit Procedures, James D. Cox

Faculty Scholarship

No abstract provided.

Reconsidering Supervisory Power In Criminal Cases: Constitutional And Statutory Limits On The Authority Of The Federal Courts, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Foreword: Public And Private Barriers To Competitive Reform Of Health Care Services Delivery, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

The Small Claims Court: A Reconceptualization Of Disputes And An Empirical Investigation, Neil Vidmar

Faculty Scholarship

In this paper disputes are seen as varying along a dimension of admitted liability, that is, the extent to which defendants admit some obligation to plaintiffs; they may admit no liability, partial liability, or full liability. This conceptualization was used in an empirical study of a small claims court. The results paint a portrait of the court that is at variance with most of the previous literature. Consumer issues constitute a substantial portion of the court caseload. On average, defendants, including individual consumers, do well when they dispute claims. Among disputed cases, small rather than large businesses predominate. Prior literature …

Union Must Provide Attorney Representation Without Regard To Union Membership--National Treasury Employees Union V. Federal Labor Relations Authority, Beth Cohen

Faculty Scholarship

The Federal Service Labor-Management Relations Statute sets forth union guidelines for collective bargaining representation in the federal sector. A labor organization with recognized exclusivity is responsible for the non-discriminatory representation of all bargaining unit employees without regard to union membership. In National Treasury Employees Union v. Federal Labor Relations Authority, a case of first impression, the court considered whether a federal employees union may, in accordance with statutory obligations, consider union membership in determining the type of representation it provides to individual employees. The court held that by denying non-union members attorney representation and substituting representation by a shop steward …

Shelf Registration, Integrated Disclosure, And Underwriter Due Diligence: An Economic Analysis, Merritt B. Fox

Faculty Scholarship

In a recent article, Professor Barbara Banoff mounted a spirited defense of the Securities and Exchange Commission's decision to adopt permanently Rule 415 under the Securities Act of 1933 (Securities Act). Rule 415 permits the registration of securities that an issuer intends to "put on the shelf'' rather than sell immediately. By having a block of "shelf registered" securities available, an issuer avoids the delay of the registration process once the decision is made to proceed with a sale. Shelf registration also gives an issuer the flexibility to seek bids from a group of competing underwriters and bypasses the traditional …

Arbitration Of International Contract Disputes, William W. Park

Faculty Scholarship

International commercial arbitration has been the victim of its own success. Arbitration is often the only dispute resolution process acceptable in business contexts where parties from different countries have rejected recourse to each other's legal system at the outset of the contractual relationship. For example, when a Swedish shipyard contracts to build tankers for an agency of the Libyan government, the Swedes are unlikely to relish the prospect of appearing before Libyan courts, and the Libyans may view submission to the courts of Sweden (or of another industrialized Western nation) as an affront to Libyan national sovereignty. Neither the Swedish …

Founders And Foundations Of Legal Positivism, David B. Lyons

Faculty Scholarship

The tradition of legal theorizing that we call "positivism" embraces two principal, related ideas: first, law is a species of empirical fact; second, law must be distinguished from morality - in particular, we must not confuse the law that we actually have with the law as we would like it to be. These two elements are connected by the notion that, whatever facts determine what it is to have law, they leave it an open question whether a given system of law or particular laws within it merit respect.

The Convergence Of The Law Of State Responsibility For Injury To Aliens And International Human Rights Norms In The Revised Restatement, Thomas E. Carbonneau

Faculty Scholarship

The now celebrated (infamous to some) section 711 of the Restatement of Foreign Relations Law of the United States (Revised) is meant to replace the allegedly dated and obtuse black-letter content of sections 178 through 183 of the Restatement (Second) of Foreign Relations Law of the United States with more contemporary, subtle, and economical provisions.

This Article briefly assesses the significance of these disclaimers against the unmistakable "new look" of section 711. Even upon initial perusal, the divergence in content and presentation between the existing provisions and the recommended formulation of the law of state responsibility for injury to aliens …

The Place Of Agencies In Government: Separation Of Powers And The Fourth Branch, Peter L. Strauss

Faculty Scholarship

For the past few years the Supreme Court has been struggling with issues of government structure so fundamental that they might have been thought textbook simple, yet with results that seem to imperil the everyday exercise of law-administration. Under what circumstances can Congress assign the adjudication of contested issues in the first instance to tribunals that are not article III courts? The past century has witnessed the profuse growth of legislation assigning to special adjudicative tribunals – administrative agencies and other article I courts – the power to hold trial-type hearings that might otherwise have been placed in the article …

Law As An Instrument Of Educational Policy-Making, David Jung, David L. Kirp

Faculty Scholarship

No abstract provided.

Preliminary Procedural Protection For The Press From Jurisdiction In Distant Forums After Calder And Keeton, David I. Levine

Faculty Scholarship

No abstract provided.

The Authority For The Appointment Of Remedial Special Masters In Federal Institutional Reform Litigation: The History Reconsidered, David I. Levine

Faculty Scholarship

No abstract provided.

Conflicts Among Circuits And Transfers Within The Federal Judicial System, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Roger Traynor: Teacher, Jurist, And Friend, James R. Mccall

Faculty Scholarship

No abstract provided.

The "Discovery" Of Sexual Abuse: Experts' Role In Legal Policy Formulation, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Children Of The Night: The Adequacy Of Statutory Treatment Of Juvenile Prostitution, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

On The Outside Looking In: The Legal Historian's Perspective On Rare Book Collections, Jenni Parrish

Faculty Scholarship

No abstract provided.

Sexual Abuse Of Children: Recent Developments In The Law Of Evidence, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

The Depublication Practice Of The California Supreme Court, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Perfecting The Third Party Beneficiary Standing Rule Under Section 302 Of The Restatement (Second) Of Contracts, H.G. Prince

Faculty Scholarship

No abstract provided.

Recent Developments In Tax-Exempt Organizations, Stephen Schwarz, William T. Hutton

Faculty Scholarship

No abstract provided.