Law Commons^™

Cases, Conflict, And Accommodation: Patterns Of Legal Interaction In An American Community, David M. Engel

Journal Articles

This article provides an overview of an empirical study of a civil trial court and the environment of indigenous law and conflict resolution in which the court operates. The article combines an analysis of civil cases and litigants with an investigation of alternative nonjudicial approaches used by residents of the community. The first section of the article examines the emergence of legal conflicts from the fabric of social relationships in the community and compares cases and parties in the court with those that gravitate toward nonjudicial settings. The second section compares processes and outcomes available in the court with those …

What Now For The Insanity Defense?, Fernand N. Dutile, Thomas H. Singer

Journal Articles

The jury's verdict of acquittal by reason of insanity in the case of President Reagan's attempted assassination has stirred vivid debate, both in and out of the U.S. Congress and other public bodies. This article will briefly discuss the history of the insanity defense in the United States, the current status of that defense, and some major problems remaining in its use.

Presumptive And Per Se Takings: A Decisional Model For The Taking Issue, John Costonis

Journal Articles

Professor Costonis presents a decisional model for the judicial management of compensation practice under the takings clause that comprehends both physical and regulatory incursions. The model contains four elements: a commitment to presumptions rather than per se rules to determine whether property has been taken; a due process-takings phase, in which conflicts between welfare and indemnification concerns are mediated through application of the just share principle; a pure takings phase, in which a measure's fairness in operation is assessed; and a sliding scale to key government's burden of proof in justifying a particular measure in light of the values implicated …

Codifying Caste: Louisiana's Racial Classification Scheme And The Fourteenth Amendment, Raymond T. Diamond, Robert J. Cottrol

Journal Articles

No abstract provided.

The Political Offense Exception As Applied In French Cases Dealing With The Extradition Of Terrorists, Thomas E. Carbonneau

Journal Articles

There is no doubt that terrorism is a dangerous, costly and complex problem. Commentators have speculated extensively about its ideological character and other analysts have studied its sociological roots and psychological origins. Despite all this attention, there is a lack of consensus in the international community about whether terrorism is no more than a sensational form of criminality or a legitimate mode of political expression.

This article does not attempt to deal with all of the multifarious aspects of contemporary terrorism; its ambition is much more modest in scope, centering upon traditional legal mechanisms and doctrines that can be adapted …

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

Journal Articles

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 …

An Examination Of The Effect Of Recent Legislation On Commodity Tax Straddles, Samuel C. Thompson Jr.

Journal Articles

No abstract provided.

Constitutional Law, Paul R. Baier

Journal Articles

No abstract provided.

Greatness Thrust Upon Them: Class Biases In American Law, Robert E. Rodes

Journal Articles

A common view of our present society is that it is largely egalitarian and classless. This paper proposes that this conception of an egalitarian and classless society belies reality. It argues that there is a dominant class of leaders in government, labor, and business who are characterized by their organizational skills and their technical expertise, and who have more in common with one another that they have with the respective constituencies in whose name they exercise power. It further argues that this class, in effect, is able to wield power to control the structure of society and the legal system …

The Responsibilities Of The United Kingdom Parliament And Government Under The Australian Constitution, John M. Finnis

Journal Articles

Arguing that the United Kingdom retained constitutioanl duties to Australia following that country's independence.

Afterword: Contracts And Uncertainty, Walter F. Pratt

Journal Articles

This symposium reveals an unexpected irony: The very innovations designed to deal with one type of uncertainty-economic-have themselves produced another type of uncertainty-that associated with resolving disputes. This new uncertainty sounds a discordant note in the traditional refrain that contracts are legal devices for allocating risks between parties. As an afterword, this article draws together evidence from the symposium and from history to emphasize that contract is not the ideal device for allocating risks at the very time that allocation is most desired-when uncertainty is greatest. The lesson can be put in starker terms: Contract is a legal relationship and …

The Legal Ethics Of The Two Kingdoms, Thomas L. Shaffer

Journal Articles

The question I propose to address while I am with you is this: Is there a special morality for professional life? In terms of convention and argot, the answer to that question would appear to be: Yes, there is a separate morality for the professional lives of lawyers and judges. We do not follow the same morals in public and professional life as we follow in personal life.

Power To Enforce Treaties In Australia -- The High Court Goes Centralist?, John M. Finnis

Journal Articles

At first glance, the decision of the High Court of Australia in Koowarta v Bjelke-Petersen profoundly affects the distribution of legislative power between the States and the Commonwealth of Australia. Perhaps that first impression should be somewhat qualified. But there seems no good reason to doubt what Wilson J (dissenting) said about its possible implications for the exercise of State legislative power.

Preface, Thomas L. Shaffer

Journal Articles

Several years ago, when I lived in Indiana, I got a grant to write a book about lawyers. The newspaper ran a story about it; the paper said I was to study the morals of lawyers. A friend of mine sent me a clipping of the story with a note that said, "It won't take long." My friend held the common Hoosier view that lawyers have no morals. A frontier story tells of the Indiana lawyer who died and whose body was laid out in a room and left for the night. When morning came, there was nothing left in …

Union Liability In Fair Representation Suits, Robert Jones

Journal Articles

In 1976 Charles V. Bowen, a United States Postal Service employee requested that his union, the American Postal Workers initiate arbitration proceedings to prevent his employer from firing him over an alleged altercation with another employee. After the union refused Bowen sued both the Service for firing him and American Postal Workers for breaching its duty of fair representation. The case reached the U.S. Supreme Court, which held that a union that fails to properly represent an employee illegally fired from his job is liable for a portion of his lost wages. The Bowen decision poses a serious threat to …

Government Enforcement Policy Of Section 7 Of The Clayton Act: Carte Blanche For Conglomerate Mergers?, Joseph P. Bauer

Journal Articles

This Article argues that the Department of Justice's recently articulated enforcement intentions with respect to conglomerate mergers are inconsistent with the case law applying section 7 of the Clayton Act to these transactions and also represent unsound policy. Part I will review the conglomerate merger jurisprudence of the past two decades - looking at the theories that have been used to challenge them, at the important judicial decisions interpreting and applying those theories, and at the Guidelines adopted by the Department of Justice in 1968 to codify these developments. It will then briefly discuss certain developments regarding conglomerate mergers the …

The Manville Bankruptcy: Treating Mass Tort Claims In Chapter 11 Proceedings, Robert Jones

Journal Articles

The reorganization petition filed by the Manville Corporation, the nation’s largest asbestos manufacturer in 1982 is an attempt by a healthy and solvent corporation to declare bankruptcy. It differs greatly from a traditional reorganization case, which involves a debtor that knows who its creditors are and how much it owes them. Manville does not know who the majority of its creditors are or the amount of its potential tort liability. It is instead using the 1978 Bankruptcy Reform Act's Chapter 11 reorganization provisions to seek shelter from a huge but speculative tort liability. In doing so Manville presents a major …

Beyond Cases: Reconsidering Judicial Review, Janet S. Lindgren

Journal Articles

No abstract provided.