Law Commons^™

Union Waiver Of Employee Rights Under The Nlra: Part I, Michael C. Harper

Faculty Scholarship

The author formulates a principle, based on the Supreme Court decision in NLRB v. Magnavox, to distinguish which employee rights protected by section 7 may not be waived by unions in collective bargaining agreements. In this article, the non-waiver principle is applied to the right to strike. In the next issue, Professor Harper will address application of the principle to Board deferral to arbitration, drawing on former Board Chairman Murphy's swing vote opinion in General American Transportation Corp.

Competition In Health Services: Overview, Issues And Answers, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

Government Statistics: The Case For Independant Regulation—A New Legislative Proposal, Erwin Chemerinsky, David Zarefsky, Alan S. Loewinsohn

Faculty Scholarship

No abstract provided.

Animal Feedlot Regulation In Minnesota, Marcia R. Gelpe

Faculty Scholarship

Animal feedlots frequently are the subject of dispute between operators and surrounding landowners. In this Article, Professor Gelpe identifies the environmental problems created by animal feedlots and discusses the common-law remedies. In addition, Professor Gelpe provides valuable insights into the application and Interpretation of feedlot regulations recently enacted by Minnesota.

Article Nine's Treatment Of Commingled Cash Proceeds In Non-Insolvency Cases, William H. Henning

Faculty Scholarship

One of the most difficult questions arising under Article 9 of the Uniform Commercial Code is the extent to which a secured party's interest in collateral continues to be enforceable against the proceeds generated upon disposition of that collateral. Much of the difficulty surrounding this issue springs from the fact that proceeds occupy a position at the nexus of two competing Code policies. On the one hand, Article 9 validates the floating lien and minimizes the extent to which a secured party must continue to "police" a transaction once his interest has been perfected. On the other hand, it is …

The Cleveland Housing Court Act: New Answer To An Old Problem, Frederic P. White

Faculty Scholarship

The operations of the Cleveland Municipal housing court commenced April 2, 1980. The Housing Court, a division of the Cleveland Municipal Court system, was established to resolve all housing-related disputes. While considered by some as a welcome solution to overcrowded court dockets, others view it as simply another unnecessary cog in an already overburdened bureaucratic wheel. Close examination indicates, however, that there is a serious question as to whether this specialized judicial division is in fact meeting its intended purpose.

This Article will critically examine the Housing Court's historical setting, constitutional foundation and jurisdictional powers. In addition, comparison with systems …

Mccormick On Evidence And The Concept Of Hearsay: A Critical Analysis Followed By Suggestions To Law Teachers, Roger C. Park

Faculty Scholarship

No abstract provided.

Communicating With Juries: Problems And Remedies, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Assuring Effective Assistance Of Counsel, William W. Schwarzer

Faculty Scholarship

No abstract provided.

The Dismantling Of Higher Education Part 1, William K.S. Wang

Faculty Scholarship

No abstract provided.

The Dismantling Of Higher Education Part 2, William K.S. Wang

Faculty Scholarship

No abstract provided.

Introduction, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Reliance In The Revised Restatement: The Proliferation Of Promissory Estoppel, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Wilderness And Its Discontents–Wilderness Review Comes To The Public Lands, John D. Leshy

Faculty Scholarship

No abstract provided.

A Primer On Minnesota No-Fault Automobile Insurance, Michael K. Steenson

Faculty Scholarship

The Minnesota No-Fault Act has undergone substantial change since its enactment in 1974. Recent legislative modifications and judicial constructions of the Act's provisions have served to correct earlier deficiencies, but have raised new and complex problems of interpretation. In light of these developments, Professor Steenson provides an overview that explains how the Act functions. After tracing the history of automobile insurance regulation in Minnesota, Professor Steenson examines in detail the various compulsory and optional insurance coverages under the Act, the proper sources of payment under those coverages, and the limitations imposed by the Act on the right to recover damages …

Trading On Material Non-Public Information On Impersonal Stock Markets: Who Is Harmed, And Who Can Sue Whom Under Sec Rule 10b-5?, William K.S. Wang

Faculty Scholarship

No abstract provided.

Linguistic Legislation And Transnational Commercial Activity: France & Belgium, Thomas E. Carbonneau

Faculty Scholarship

For French and francophonic people, the continued vitality of their linguistic heritage is an integral part of their sense of national identity and cultural cohesiveness. The truth of this statement has been corroborated recently by legislative enactments in France and in Belgium which prescribe and/or recommend the use of French in certain private commercial and governmental activity taking place within these countries. This legislation represents an attempt to provide a partial remedy to what has been perceived generally as the syntactical and lexical "contamination" of the French language resulting from the dominance of English or, more precisely, American English, in …

The Reform Of The French Procedural Law On Arbitration: An Analytical Commentary On The Decree Of May 14, 1980, Thomas E. Carbonneau

Faculty Scholarship

Prior to May 1980, the French domestic law on arbitration had not been subject to any substantial legislative reform since the early nineteenth century. The procedural part of that law, which contained practically all of the French legislative provisions applying to arbitration, was out of date and in need of reconsideration.

Despite the considerable French procedural law reforms enacted in 1975, articles 1005 through 1028 of the Nouveau Code de procédure civile had not been revised to any significant extent since the enactment of the Code de procédure civile in 1806.

The basic intention of the new legislative text is …

Paradoxes, Gedanken Experiments And The Burden Of Proof: A Response To Dr. Cohen's Reply, David H. Kaye

Faculty Scholarship

This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one …

Defending The Quiet Life: The Role Of Special Counsel In Director Terminations Of Derivative Suits, Deborah A. Demott

Faculty Scholarship

No abstract provided.

The Emerging Threshold Approach To State Action Determinations: Trying To Make Sense Of Flagg Brothers, Inc. V. Brooks, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Toward A Theory Of Prior Restraint: The Central Linkage, Vincent A. Blasi

Faculty Scholarship

The doctrine of prior restraint embodies a temporal preference. Acts of expression that could be sanctioned by means of criminal punishment or a civil damage award may not be regulated "in advance." The factor of timing, however, cannot serve to distinguish methods of regulation as neatly as this statement would seem to imply. In addition to a retrospective impact relating to punishment or compensation, criminal prohibitions and civil liability rules are meant to have a prospective impact – to deter speakers from engaging in harmful acts of expression in the future. If impact on speech before the moment of its …

Monrad G. Paulsen, Michael I. Sovern

Faculty Scholarship

Nothing made Monrad happier than bringing together two people he loved whose lives had not previously intersected and seeing a new friendship blossom. I owe some of the most satisfying relationships of my life to that wonderful taste. And I see its fruits all over this room today. Monrad would be overjoyed if he could see us all together.

A Structural Approach To Corporations: The Case Against Defensive Tactics In Tender Offers, Ronald J. Gilson

Faculty Scholarship

Tender offers present an obvious and inherent conflict of interest between management and shareholders. On the one hand, an offer provides shareholders with the opportunity to sell their shares for a substantial premium over market price. On the other hand, the tender offer is the principal mechanism by which management can be forcibly unseated from control. It should thus come as no surprise that management often resists outsiders' efforts to direct tender offers at its shareholders. The form of that resistance, however, is somewhat surprising. Because the tender offer is the only form of corporate acquisition addressed directly to the …

Conflicts Of Law And Morality – Institutions Of Amelioration, Kent Greenawalt

Faculty Scholarship

In his rich, intricate, and wise examination of themes from the Crito, A. D. Woozley explores Socrates' proposal, put in the mouth of the personified laws of Athens, that the duty of a citizen is to obey a law or to persuade society that the law is wrong. If this position is understood to permit disobedience and attempted persuasion after a law is adopted, one of its implications is that on some occasions when people intentionally break the law, those who administer the law may properly decline to impose the stipulated punishment, because they believe that disobedience was justified. Suggesting …

Silence As A Moral And Constitutional Right, Kent Greenawalt

Faculty Scholarship

Like the Fourth Amendment ban on unreasonable searches and seizures, the privilege against self-incrimination stands as a barrier to the government's acquisition of information about criminal activities. The moral analogue in private relations to the Fourth Amendment right is quite straightforward. One person should not rummage about the private spaces of another seeking signs of bad behavior unless he has very powerful reasons. The Fourth Amendment similarly limits the government, generally permitting searches only upon probable cause. The private moral analogue to the Fifth Amendment's right of silence is harder to identify, its analysis is more complex and the judgments …

Reflections On Felony-Murder, George P. Fletcher

Faculty Scholarship

Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to …

Punishment And Compensation, George P. Fletcher

Faculty Scholarship

When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.

The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that …

A Paradigm Of First Amendment Dilemmas: Resolving Public School Library Censorship Disputes, Leora Harpaz

Faculty Scholarship

In recent years courts have begun to ponder the first amendment issue of public school library book censorship. These fledgling judicial efforts have produced a mostly inadequate analysis of the complex legal picture presented by school library book censorship. Courts that desire to intervene in censorship disputes almost unthinkingly have relied on first amendment doctrines developed outside of the censorship area and assumed their easy application to this new problem. Courts that take a hands-off attitude toward the area rely heavily on the appropriateness of judicial intervention as their central theme. Nowhere to be found in these judicial responses is …

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …