Law Commons^™

What Every Lawyer Should Know About Medicare Coverage Of Long-Term Care, Anthony H. Szczygiel

Journal Articles

No abstract provided.

Religion Vs. The Public Schools: Losing Faith In Public Schools, Elizabeth B. Mensch, Alan David Freeman

Journal Articles

No abstract provided.

The Failed Discourse Of State Constitutionalism, James A. Gardner

Journal Articles

No abstract provided.

The Role Of The Horrible In Understanding Medicine: A Meditation On David Rothman's Strangers At The Bedside, Edward P. Richards

Journal Articles

No abstract provided.

Redefining The Modern Constraints Of The Establishment Clause: Separable Principles Of Equality, Subsidy, Endorsement, And Church Autonomy, Matthew Steffey

Journal Articles

Since 1947 the Establishment Clause' has been a substantive check on governmental activity at all levels. More than four decades later, the content of that check remains unsettled. The United States Supreme Court gave the Establishment Clause its predominant modem voice in 1971 in Lemon v. Kurtzman. Under the Lemon approach, all government practices are measured by the same standard. To survive constitutional attack, a practice "must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." In nearly all cases decided since, …

The Colonial Origins Of Liberal Property Rights, Elizabeth B. Mensch

Journal Articles

No abstract provided.

Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick

Journal Articles

This essay engages in a narrow but crucial inquiry into the limits the inarbitrability defense may now impose upon the exercise of arbitral jurisdiction. While it is assumed that matters relating directly to status and capacity, testamentary dispositions, and title to immovable property fall outside the jurisdictional reach of international arbitrators, the question becomes whether any national regulatory laws, such as tax laws, benefit from the same status of inviolability.

Your Right To Privacy: A Selective Bibliography, Sandra S. Klein

Journal Articles

An awareness of relevant contemporary legal thought in the area of privacy is especially important today in light of what appears to be an increasing hostility to .the notion of individual privacy. The following bibliography considers privacy in terms of concept and application, and should prove useful to scholars, practitioners, and those seeking to gain more knowledge about this very important and complicated area of law.

Lead Poisoning In Children: A Proposed Legislative Solution To Municipal Liability For Furnishing Lead-Contaminated Water, Anthony J. Bellia

Journal Articles

Lead poisoning has become one of the most widespread and serious environmental diseases facing children in the United States. In response to the problem of childhood lead exposure, the Environmental Protection Agency (EPA) has promulgated expansive regulations to reduce drinking water lead levels. However, the regulations are not without significant gaps and shortfalls. Many improvements that the EPA requires need not be in place for years, and some households at risk of unsafe lead exposure receive no regulatory protection at all. One question that arises amidst these regulatory gaps is whether a plaintiff can hold a public water system liable …

The Extraterritorial Application Of Antitrust Laws: The United States And European Community Approaches, Roger P. Alford

Journal Articles

This Arti­cle compares the differing approaches of the United States and the European Community as they wrestle with the question of how to regulate foreign anticompetitive activity. More specifically, this Arti­cle highlights the distinctive features of the U.S. "effects doctrine" and the European Community's "implementation approach" and ana­lyzes the differences that exist between the two systems. Only the U.S. doctrine openly provides for the consideration of international comity concerns, but both approaches have been used liberally to assert jurisdiction over foreign defendants. Part II of this Article pro­vides a background to the subject by briefly outlining the traditional bases of …

The French Legal Profession: A Prisoner Of Its Glorious Past?, Tang Thi Thanh Trai Le

Journal Articles

In 1978 a French television poll queried 982 viewers as to their images of the French lawyer (avocat). Of those polled, less than five percent held a positive view of the avocat. Eighteen percent of the 940 persons who expressed a negative view of the avocat simply conveyed this impression in general terms, but the remainder were more precise. Forty-eight percent of the respondents felt that the avocat was a "money sucker"; fourteen percent saw him as a man without conscience; and another fourteen percent believed that he acted with impunity within his bar. Four percent considered the bar to …

Tort Law: The Languages Of Duty, Jay Tidmarsh

Journal Articles

Summarizing the developments in Indiana tort law is a daunting, perhaps impossible task. In more than 115 reported opinions, state and federal courts wrestled with issues, many of them issues of first impression, which ranged across the spectrum of tort law. A constant thread runs through many of these cases. The thread is duty. Time and again during the past year, Indiana courts were required to decide whether a particular set of facts gave rise to a duty of care by the defendant or an obligation of avoidance by the plaintiff.

Some of the cases involved novel legal duties, while …

Common Sense In Formation For The Common Good - Justice White's Dissents In The Parochial School Aid Cases: Patron Of Lost Causes Or Precursor Of Good News, John J. Coughlin

Journal Articles

This Article envisions a new order for public education in this country. Pursuant to the new order, a free market under appropriate government regulation rather than unchecked political authority would determine the flow of public aid to various schools. Such an order would enable parents to choose what kind of school, secular or sectarian, presents the most desirable educational environment. The new arrangement would also provide incentives for quality education, as schools now run by the state government would have to compete on an even field with schools that currently receive no public funds.

It has been almost twenty years …

A Judicial Clerkship 24 Years After Graduation: Or, How I Spent My Spring Sabbatical, Joseph P. Bauer

Journal Articles

The career path of many law professors includes a judicial clerkship - typically, right after graduation. Almost all law professors have extolled the clerkship experience and have written letters of recommendation for students applying for those positions. While I fall into the latter category, I did not fall into the former - at least not until my recent sabbatical.

When I was a law student, I gave no thought to a clerkship, and none of my teachers encouraged me to pursue that route. (In fact, graduating in 1969 at the height of the Vietnam War, I thought mainly - like …

Unattainable Justice: The Form Of Complex Litigation And The Limits Of Judicial Power, Jay Tidmarsh

Journal Articles

Part I begins the inquiry by describing the practical and theoretical factors that have led various courts and commentators to label particular types of litigation "complex." Although all the definitions provide important data about the nature of complex litigation, none capture its full breadth. Thus, the task of the Article's next two Parts is to develop a formal and inclusive definition. Part II builds the theoretical framework for the definition by describing the form of adjudication and the positive assumptions of modern civil litigation.

Next, Part III demonstrates that complex litigation arises from the friction between the real-world problems outlined …

Protecting Religious Liberty: Judicial And Legislative Responsibilities, Gerard V. Bradley

Journal Articles

Is the First Amendment hostile to religion? Answering that question requires at least the usual professorial ration of caveats. I assure you that I will directly answer the question. I submit, though, that the caveats constitute a more important, deeper response, a response which questions the question itself. Were I more radical in my intellectual sympathies, I would propose to deconstruct the question.

Permanent Legislation To Correct Duro V. Reina, Nell Jessup Newton

Journal Articles

In Duro v. Reinal the Supreme Court held that Indian tribal courts do not have criminal jurisdiction over nonmember Indians. In so doing the Court extended its earlier holding in Oliphant v. Suquamish Indian Tribe, which had prevented tribes from exercising criminal jurisdiction over non-Indians and struck a serious blow to tribal sovereignty. The Oliphant decision has been soundly criticized as ahistorical and even dishonest, as well as essentially ethnocentric. The case also posed grave dangers to tribal people, because of the great number of nonmember Indians who live and work on Indian reservations, and the fact that nonmembers fall …

Indian Claims In The Courts Of The Conqueror, Nell Jessup Newton

Journal Articles

The Federal Circuit reviews Indian claims because Congress combined the former Court of Claims, which had jurisdiction over Indian claims, with the Court of Patent and Customs Appeals to create the new Claims Court. The jurisdiction of the Court of Claims also included some patent cases as well as tax, contract, pay suits, takings cases, and congressional reference cases. Congress added the Court of Claims to this mix in part to counter the argument that the two new courts, the Claims Court and the Federal Circuit, would become overly specialized.

Indian claims comprise only a tiny portion of the jurisdiction …

With Liberty And Justice For Whom? The Recent Evangelical Debate Over Capitalism (Book Review), Thomas L. Shaffer

Journal Articles

Those who for scholarly or journalistic convenience aggregate hundreds of Christian denominations into four or five "movements" put the radical Christian pacifist Jim Wallis (of Sojourners magazine) and Dr. Jerry Falwell, founder of the Moral Majority, in one theological category. They are both evangelicals, heirs of Calvinism and the Radical Reformation, both practitioners of "conservative Protestant orthodoxy," both believers in the fundamental authority of the Bible.

And, because both of them, and thousands of Christians who follow one or both of them, are trying to respond to the criticism that evangelicalism (or "fundamentalism") neglects social and economic issues, they are …

Doctrinal Synergies And Liberal Dilemmas: The Case Of The Yellow-Dog Contract, Barry Cushman

Journal Articles

The three decades spanning the years 1908 to 1937 saw a remarkable transformation of the Supreme Court's jurisprudence concerning the rights of workers to organize. In 1908, the Court held that a federal law prohibiting employers from discharging an employee because of his membership in a labor union violated the liberty of contract secured to the employer by the Fifth Amendment. In 1915, the Court similarly declared a state statute prohibiting the use of "yellow-dog" contracts unconstitutional. In 1937, by contrast, the Court upheld provisions of the Wagner Act prohibiting both discharges for union membership and the use of yellow-dog …

National Socialism And The Rule Of Law, Donald P. Kommers

Journal Articles

Ingo Muller's book, originally published in 1987 as Furchtbare Juristen: Die unbewaltigte Vergangenheit unserer Justiz (literally "Dreadful Jurists: The Remorseless Past of Our Judiciary"), describes the moral collapse of the German legal profession and its role in facilitating the construction and maintenance of the Nazi regime. Gracefully translated by Deborah Lucas Schneider, Hitler's Justice seeks, first, to show how legal professionals betrayed their trust as lawyers, prosecutors, and judges and, second, to assess the degree to which Germany in the postwar period reformed its legal system, purged the judiciary of former Nazis, and rededicated itself to the rule of law. …

Continuing Limits On Un Intervention In Civil War, Mary Ellen O'Connell

Journal Articles

Can the United Nations (UN or Organization) send military forces into civil war without the consent of the parties to the conflict? To date, it never has, but with the end of the Cold War, the Organization is in a position to think again about its proper role in civil war. During the past year, the Security Council has had requests to intervene in the civil wars in Iraq, Yugoslavia, and Somalia. So far, the UN has sent troops to Iraq and Yugoslavia but only after getting the consent of all parties.

The Security Council's recent decisions conform with the …

Survey Of Recent Developments In Indiana Law: Labor And Employment Law, Barbara J. Fick

Journal Articles

This article examines developments in labor and employment law occuring shortly before its publicaiton in 1992. The article discusses cases revisiting the Frampton rule, addressing employee defamation suits against employers, employment discrimination, issues arising in public sector employment, wage statutes, unemployment compensation, and workers' compensation. It also discusses a state statute prohibiting employment discrimination based on employees' off-duty use of tobacco.

Sameness And Difference In A Law School Classroom: Working At The Crossroads, Judy Scales-Trent

Journal Articles

No abstract provided.

Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey

Journal Articles

No abstract provided.

Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen

Journal Articles

No abstract provided.

Using Literature In Law School: The Importance Of Reading And Telling Stories, Judy Scales-Trent

Journal Articles

No abstract provided.

The Case For Self-Determination, Guyora Binder

Journal Articles

This lecture offers an analysis and defense of the right of self-determination of peoples. The argument begins by analyzing self-determination into its universalist and nationalist components. The universalist component of self-determination is satisfied wherever institutions of government are majoritarian. The nationalist component of self-determination is satisfied to the extent that institutions of government are identified with particular communities. The universalist compoent is now widely recognized as an authoritative principle of international law. The nationalist component remains controversial, particularly outside of the particular context of the dismantling of European colonial empires. The lecture proceeds to defend the nationalist component by attacking …

Discourse And Difference—A Reply To Parness And Cogan, James A. Gardner

Journal Articles

No abstract provided.

The Daughters Of Job: Property Rights And Women's Lives In Mid-Nineteenth-Century Massachusetts, Dianne Avery, Alfred S. Konefsky

Journal Articles

No abstract provided.