Law Commons^™

From Risk-Utility To Consumer Expectations: Enhancing The Role Of Judicial Screening In Product Liability Litigation, Aaron Twerski

Faculty Scholarship

No abstract provided.

Elimination Of Automatic Judgment Liens In Missouri, William H. Henning

Faculty Scholarship

The traditional automatic judgment lien on real property following rendition of a money judgment has been statutorily eliminated. Judgment liens are now dependent upon the filing of an abstract of the judgment by the court clerk, but the implementing legislation contains ambiguities that raise issues regarding the scope of such liens.

Equal Divisions In The Supreme Court: History, Problems, And Proposals, William L. Reynolds, Gordon G. Young

Faculty Scholarship

No abstract provided.

Clinical Education In The Seventies: An Appraisal Of The Decade, Robert J. Condlin

Faculty Scholarship

Presentation to the Clinical Section of the Association of American Law Schools.

The Origins Of Freedom Of Speech And Press, David S. Bogen

Faculty Scholarship

No abstract provided.

Book Review: Speech And Law In A Free Society, David S. Bogen

Faculty Scholarship

No abstract provided.

The Moral Failure Of Clinical Legal Education, Robert J. Condlin

Faculty Scholarship

No abstract provided.

Meaningful Reform Of Plea Bargaining: The Control Of Prosecutorial Discretion, Donald G. Gifford

Faculty Scholarship

No abstract provided.

A Constitutional Analysis Of Ohio's New Drunk Driving Law, Donald G. Gifford, Howard M. Friedman

Faculty Scholarship

Ohio's recently revised DUI law faces a wide variety of challenges on constitutional grounds. Professors Gifford and Friedman describe these constitutional arguments and evaluate their merit by considering both broader constitutional principles and persuasive precedents in jurisdictions with similar statutes. In addition to their analysis of the statute's constitutionality, Professors Gifford and Friedman explore other constitutional issues likely to arise from the enforcement of the statute including ones concerning the implied consent provision, breath tests and the use of motions in limine by defendants in drunk driving prosecutions.

Institutional Litigation In The Post-Chapman World, Susan Herman

Faculty Scholarship

No abstract provided.

Why Terminate Parental Rights, Marsha Garrison

Faculty Scholarship

No abstract provided.

The Power Struggle Between Shareholders And Directors: The Demand Requirement In Derivative Suits, Tamar S. Frankel, Wayne M. Barsky

Faculty Scholarship

This article examines the demand shareholders must make on a corporation's board of directors prior to bringing a derivative suit. ... Presented with the question of whether the court would give effect to a decision of a committee of disinterested directors to terminate a shareholder derivative suit alleging directors' breach of fiduciary duties, the court ruled that even if the special committee was truly disinterested and independent, "[t]he Court should determine, applying its own independent business judgment, whether the [corporation's] motion [to dismiss the derivative action] should be granted." ... A derivative suit is one of the means for conducting …

The Exhaustion Doctrine In Federal Habeas Corpus: An Argument For A Return To First Principles, Larry Yackle

Faculty Scholarship

The exhaustion doctrine in federal habeas corpus contemplates not the relinquishment of federal jurisdiction to determine the merits of federal claims arising in state criminal prosecutions, but the appropriate timing of an undoubted federal power to adjudicate in due course. Simply stated, the doctrine postpones federal review until petitioners have exhausted state judicial remedies still available for the treatment of their federal claims at the time they wish to apply for federal relief. The resulting delay is justified on the twin grounds that earlier federal intervention would disrupt the orderly administration of state criminal prosecutions and deprive the state courts …

Fraudulent Concealment In Federal Court: Toward A More Disparate Standard?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

English Judicial Recognition Of A Right To Privacy, David J. Seipp

Faculty Scholarship

The average Englishman's habits of reserve and regard for his own privacy are legendary. It is surprising, therefore, that English courts have, until very recently, shown great reluctance to recognize privacy as an interest worthy of legal protection in its own right. The experience of other common law countries has not been the same; privacy law has flourished in the United States' and has gained a foothold in Australia and Canada. Moreover, a right to privacy has received international recognition in the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and the European Convention on …

International Exchange Of Information In Criminal Cases, Michael E. Tigar, Austin J. Doyle Jr.

Faculty Scholarship

No abstract provided.

When Incommensurable Values Conflict -- Thoughts On Mandelker's Environment And Equity: A Regulatory Challenge, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Myth And Reality In Protective Order Litigation, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Reducing Court Costs And Delay: The Potential Impact Of The Proposed Amendments To The Federal Rules Of Civil Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Commercial Arbitration In The Eighteenth Century: Searching For The Transformation Of American Law, Eben Moglen

Faculty Scholarship

Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a "transformation" in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an "alliance," in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in …

To Praise The Estate Tax, Not To Bury It, Michael J. Graetz

Faculty Scholarship

For several decades, total revenues raised by estate and gift taxes have roughly equaled those raised by excise taxes on alcohol and tobacco. Yet no law journal has ever asked me to write on alcohol or tobacco excise taxes. The law firms of America do not routinely have divisions devoted to excise tax planning. We do not hear of the suffering of widows and orphans (or even of farmers and small businesses) because of alcohol and tobacco taxes. Philosophers and economists do not routinely debate the merits of such taxes. Perhaps most significantly, increases in such excise taxes do not …

Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss

Faculty Scholarship

Examining the Supreme Court's recent decisions in the legislative veto case, Professor Strauss stresses the importance of a distinction no Justice observed between use of the veto in matters affecting direct, continuing, political, executive-congressional relations, and use of the veto in a regulatory context. Only the latter, he argues, had to be reached by the Court; and only the latter presents the constitutional difficulties that troubled the Court. The utility of the veto in the political context makes the opinions' sweep regrettable.

Teaching Administrative Law: The Wonder Of The Unknown, Peter L. Strauss

Faculty Scholarship

Sunday, March 7, 1982

Dear Roger:

You would have enjoyed being among the hundred-odd administrative law teachers and hangers-on who met this past weekend for the AALS Workshop on Administrative Law, organized by Ernest Gellhorn of Virginia, [now dean at Case Western]. Perhaps it was the plane ride home, when I had a chance to read Frank Easterbrook's short but very elegant use of Arrow's Theorem in a recent Harvard Law Review; or perhaps it is just a goodnight's sleep, home away from the sybaritic pleasures of New Orleans, and knowing my dean will want a justification in terms …

Sharing Parenthood After Divorce, Carol Sanger

Faculty Scholarship

Ciji Ware's first sentence in the popularly publicized Sharing Parenthood After Divorce directs the reader to "read this book before you hire a lawyer." Because many separated and divorced parents will follow Ware's instruction, family law practitioners should be aware of Ware's approach to and recommendations regarding custody. Her position is clear. The book is subtitled An Enlightened Custody Guide for Mothers, Fathers, and Kids and the meaning of "enlightened" is apparent from the title of Part One, "Why You Should Choose Shared Custody." But because her message is sometimes more enthusiastic than considered, lawyers and parents should be aware …

Free Speech And Intellectual Values, Lee C. Bollinger

Faculty Scholarship

In the preface to his book, The Negro and the First Amendment, Harry Kalven observed that the idea of free speech was marked by an unusually keen "quest for coherent general theory." Every area of the law, Kalven puzzled, was rife with inconsistency and ambiguity, yet inexplicably there was little tolerance· for anomalies in the field of free speech. As to why this was so, Kalven speculated that "free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the …

The Metastasis Of Mail Fraud: The Continuing Story Of The Evolution Of A White-Collar Crime, John C. Coffee Jr.

Faculty Scholarship

Justice Cardozo observed that legal principles have a tendency to expand to the limits of their logic, and Judge Friendly has added the corollary that sometimes the expansionary momentum carries the principle even beyond those limits. So it has been with the recent growth in the federal mail fraud law, as courts have applied a standardized formula- known as the "intangible rights" doctrine- to a broad range of fact patterns having relatively little in common. The result has been both to extend the net of the federal criminal sanction over an extraordinarily vast terrain and to arm the federal prosecutor …

The Watchdog Of Neutrality, George P. Fletcher

Faculty Scholarship

No one knows who counts as a democrat, as a fascist, or as a liberal. It is much easier to know whether it is good or bad to earn one of these political labels. Virtually everyone – including repressive regimes in eastern Europe – regards it as good to be democratic. These days, however, it is hard to encounter a sympathetic wink for fascism. Liberalism is more controversial. A growing number of our colleagues in law schools now regard it as intellectually bankrupt, if not worse, to think of oneself as a liberal. Respectable philosophers chronicle the poverty of liberalism, …

The Generalized Theory Of Transfers And Welfare: Bilateral Transfers In A Multilateral World, Jagdish N. Bhagwati, Richard A. Brecher, Tatsuo Hatta

Faculty Scholarship

Paul Samuelson's (1952, 1954) classic papers on the transfer problem addressed two separate analytical issues: the "positive" effect of a transfer on the terms of trade; and the welfare effect of the transfer on the donor and the recipient.

Since then, a considerable body of literature has grown up on the positive analysis. While Samuelson (1954) himself had extended the 2 X 2 X 2 free trade analysis to allow for tariffs and transport costs, subsequent writers have analyzed other extensions of the model: for example, to allow for nontraded goods as with leisure in Samuelson (1971); or general nontraded …

Marriage: The Status Of Contract, An Essay On Weitzman's The Marriage Contract, Marsha Garrison

Faculty Scholarship

No abstract provided.

Statistical Significance And The Burden Of Persuasion, David H. Kaye

Faculty Scholarship

In most endeavors concerned with the acquisition of knowledge, quantitative information is welcomed. In law, however, it appears sometimes that scientific or numerical evidence makes cases harder, not easier. Nevertheless, there are many cases and administrative proceedings, in such areas as environmental law, food and drug regulation, and civil rights, in which statistical data obtained by observation or experiment are readily accepted as assisting in the proper resolution of disputed issues of fact. When courts or administrators confront scientific and statistical evidence in these proceedings, they are not always certain of how to weigh the evidence or whether they should …