Law Commons^™

Islamic Law Vs. Patriarchal Systems: A Woman's Perspective, Azizah Y. Al-Hibri

Law Faculty Publications

It is best to understand Islam through its core concept,· adalah (justice). This is a complex concept that thoroughly permeates the Islamic worldview. It is not reducible to retributive justice, because it is a higher-order concept whose backbone is the Mizaan (balance and harmony).

Weingarten In The Nonunion Workplace: Looking In The Funhouse Mirror, Ann C. Hodges

Law Faculty Publications

The National Labor Relations Board's extension of the Weingarten decision, granting the right to union representation at pre-disciplinary interviews, to the nonunion workplace was recently upheld by the U.S. Court of Appeals for the D.C. Circuit.- Section 7's, protection of concerted activity and the symmetrical protection of union and nonunion employees alike renders the decision sensible and supportable. Nevertheless, closer examination ofthe decision's consequences suggests that the application ofthe Weingarten right in the nonunion workplace results in a distorted reflection ofthe right's application in the unionized workplace. The situations are not mirror images. Thus, some adjustments to the interpretation ofthe …

Foreword, Azizah Y. Al-Hibri

Law Faculty Publications

Recent world events have also underlined the fact that the shrinking global village is not moving automatically towards increased democracy, peace and cooperation. The use of force continues to be the preferred tool for conflict resolution, despite all claims to the contrary. To complicate matters, the new technological innovations are bringing violence instantaneously to our doorstep. Conflicts in far away regions of the world can no longer be ignored. They have cast their shadow over our cities. The dream of the global village has become a nightmare, with no apparent exit. What can we do about it?

Incentives For Hiring Welfare-To-Work Participants, Mary L. Heen

Law Faculty Publications

The Job Creation and Worker Assistance Act of 2002, signed into law by President Bush on March 9th, extends the Work Opportunity Tax Credit (WOTC) and the Welfare-to-Work Tax Credit (WtW) for two more years. The credits provide employers with tax incentives to hire former long-term welfare recipients and certain other economically disadvantaged workers, a goal that comports with the welfare-to-work focus of welfare reform legislation adopted by Congress in 1996. This article describes these employer tax credits, explains how they have evolved from prior versions of similar targeted tax credits, and considers their operation as tax-delivered subsidies.

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter N. Swisher

Law Faculty Publications

In all of Anglo-American law, there is no concept that has been as been so pervasive - and yet so elusive - as the causation requirement; and even today this causation requirement in American law has resisted all efforts to reduce it to a useful, understandable, and comprehensive formula regarding its underlying nature, content, scope, and significance. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of the law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than legal …

Jimmy Hoffa's Revenge: White-Collar Rights Under The Mcdade Amendment, John G. Douglass

Law Faculty Publications

I begin the Essay with a bit of comparative history. In Part I, I describe the death and burial of the Sixth Amendment no-contact rule espoused by Jimmy Hoffa. In Part II, I contrast the birth and expansion of an extra-constitutional no-contact rule under Model Rule 4.2 and the McDade Amendment. I begin with these contrasting histories because I believe they illustrate two critical points about the no-contact rule in criminal investigations. First, despite its place in codes of ethics, the no-contact rule in criminal investigations has little to do with ethics. Instead, today's debate over Rule 4.2 is simply …

Financial Management Of The Law School: Costs, Resources, And Competition, Jay Conison

Law Faculty Publications

No abstract provided.

Valuing Man's And Woman's Best Friend: The Moral And Legal Status Of Companion Animals, Rebecca J. Huss

Law Faculty Publications

This article first provides an overview of the philosophicla basis of the allocation (or non-allocation) of moral status to nonhuman animals considering historical and modern views of animals. Second, it analyzes the legal status of animals under the current system and discusses the idea of extending legal personhood to such animals. Next it considers the common law and statutory basis for the current valuation of companion animals. Finally, this article supports and promotes the idea that there is a rational basis for changing the way that companion animals should be valued by the legal system and recommends the adoption of …

Adult Children And Indigent Parents: Intergenerational Responsibilities In International Perspective, Seymour Moskowitz

Law Faculty Publications

No abstract provided.

Rediscovering Discovery: State Procedural Rules And The Level Playing Field, Seymour Moskowitz

Law Faculty Publications

In the modern era of few trials, the pretrial process is critical to the disposition of most cases. Discovery has been a fiercely debated subject for may years. Many commentators believe that discovery has become too expensive, very time consuming, and often abusive. Others disagree, and articulate an entirely different diagnosis of the problems in our civil justice system. Regardless, the scope of discovery, and the process for undertaking it, create predictable advantages and disadvantages for many types of litigants. Although state courts dispose of the vast majority of cases in the United States, academic writings on procedural matters, particularly …

Can Treaty Law Be Supreme, Directly Effective, And Autonomous--All At The Same Time?, Richard Stith, J.H.H. Weiler

Law Faculty Publications

No abstract provided.

Colorblindness, Race Neutrality, And Voting Rights, Henry L. Chambers, Jr.

Law Faculty Publications

The Reconstruction Amendments' guarantee of civil rights and political equality for racial minorities means that with respect to voting and representation, raceneutral results should be as much a constitutional imperative as colorblind process. As such, a colorblind electoral rule that unintentionally lessens the ability of a minority group to vote or to choose its candidate of choice should be deemed unconstitutional under the Fifteenth Amendment, not merely unlawful under the Voting Rights Act, unless the jurisdiction can provide a strong justification for the rule focused on why such a rule is reasonably necessary to safeguard the electoral process. This change …

A Preferable Approach For The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

United States Senators Orrin Hatch (R-Utah) and Frank Murkowski (R-Alaska) recently introduced Senate Bill 2184, which would split the United States Court of Appeals for the Ninth Circuit into two circuits. This measure differs from Senate Bill 253 that embodies the recommendations submitted to Congress by the Commission on Structural Alternatives for the Federal Courts of Appeals after its one-year study. The Commission found "no persuasive evidence that the Ninth Circuit ... is not working effectively" and clearly rejected bifurcation. However, the Commission recommended that Congress impose a divisional restructuring on the Ninth Circuit Court of Appeals and authorize the …

Anastasoff, Unpublished Opinions, And Federal Appellate Justice, Carl W. Tobias

Law Faculty Publications

In Anastasoff v. United States, a three-judge panel of the United States Court of Appeals for the Eighth Circuit recently invalidated the court's local rule of appellate procedure providing that "unpublished opinions are not precedent and parties generally should not cite them." Eighth Circuit Judge Richard S. Arnold authored the opinion, holding that this local requirement violates Article ill of the United States Constitution. Regardless of whether the provocative decision in Anastasoff is constitutionally sound, the opinion trenchantly emphasizes the critical significance of a public policy issue that has remained essentially untreated for too long.

The three-judge panel, thus, threw …

A Civil Discovery Dilemma For The Arizona Supreme Court, Carl W. Tobias

Law Faculty Publications

The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity. This objective was not realized generally or by very many specific jurisdictions. Observers of the increasingly fractured procedural regime in the federal arena have voiced concerns about the mounting numbers of strictures, the accelerating pace of procedural change and the growing inconsistency of the requirements imposed. Illustrative are the major 1983 and 1993 federal discovery amendments, which new discovery provisions further revised in December 2000. The Civil Justice Reform Act …

Youngstown Revisited, Carl W. Tobias, Christopher Bryant

Law Faculty Publications

One half century ago, President Harry S. Truman promulgated an Executive Order that authorized federal government seizure and operation of the nation's steel mills to support United States participation in the Korean conflict.1 The president relied on his power as commander-in-chief of American armed forces, other executive authority provided by Article II in the United States Constitution, the need for sustaining the American military effort, and temporal exigencies. Eight weeks later, the United States Supreme Court held that Truman lacked any power to seize the property of American steel companies in Youngstown Sheet & Tube Co. v. Sawyer.

On November …

Dear Chief Judge Schroeder, Carl W. Tobias

Law Faculty Publications

Dear Judge Schroeder: Congratulations on becoming the Chief Judge of the United States Court of Appeals for the Ninth Circuit. Judge Procter Hug, Jr., transferred that office to you on December 1, 2000, during a quiet period in the tribunal's life, affording several months of relative calm m which to assume the daunting responsibility for Ninth Circuit operations. Your twenty-one-year service as an active court member will promote the felicitous discharge of your new duties as chief judge and will ease resolution of the difficulties that the tribunal will invariably encounter.

You have entered the pantheon of leaders whose century …

Modern Tort Law Demystified, Carl W. Tobias

Law Faculty Publications

Review of Peter Bell & Jeffery O'Connell, Accidental Justice: The Dilemmas of Tory Law (1997).

Dear President Bush, Carl W. Tobias

Law Faculty Publications

Professor Tobias offers advice on judicial selection philosophy for the newly-elected President George W. Bush.

Intentional Infliction Of Mental Distress In Nevada, Carl W. Tobias

Law Faculty Publications

The independent cause of action for the intentional infliction of mental distress (IIMD) is the only modern intentional tort for physical injury to persons. State court judges in the United States initially recognized the freestanding cause of action during the mid-twentieth century. Nevertheless, considerable confusion has attended the judicial recognition, articulation, and application of this tort in a substantial number of American jurisdictions. The jurisprudence of IIMD that members of the Nevada Supreme Court as well as attorneys and litigants in Nevada have developed has remained rather clear, although the justices have decided comparatively few cases in which they have …

Denied Visitation, Its Impact On Children's Psychological Adjustment, And A Nationwide Review Of State Code, Adrienne Volenik

Law Faculty Publications

Denied visitation occurs when one parent prevents the other parent from court mandated visitation allowances with the child. This complex issue affects many families of divorce, but unfortunately is an understudied topic. Additionally, the literature that is available on denied visitation suffers from methodological challenges that are inherent to the complexity of the subject. Denied visitation is not a homogeneous event, but one that is conceptualized into two major categories: appropriate (i.e., concerning safety of the child) and inappropriate (i.e., involving interparent hostility). These two types of denied visitation are further divided into subcategories based on a review of the …

Telemarketing, Commercial Speech, And Central Hudson: Potential First Amendment Problems For Indiana Code Section 24-4.7 And Other "Do-Not-Call" Legislation, Steven R. Probst

Law Faculty Publications

No abstract provided.

State And Federal Constitutional Law Developments, Rosalie Levinson

Law Faculty Publications

This Article explored state and federal constitutional law developments over the past year. Parts I-III examine both U.S. Supreme Court cases and significant Indiana state and lower federal court cases addressing federal constitutional issues. Part IV will focus on state civil constitutional law cases.

Federal Judicial Selection In The Fourth Circuit, Carl W. Tobias

Law Faculty Publications

Professor Tobias assesses federal judicial selection for the United States Court of Appeals for the Fourth Circuit and for North Carolina. His Essay ascertains that four of fifteen active judgeships that Congress has authorized for the court have remained vacant over a considerable period and that a seat designated for North Carolina has been unfilled for seven years. He finds that these judicial vacancies may affect the appellate justice which the Fourth Circuit delivers and that North Carolina deserves.

The Expiration Of The Civil Justice Reform Act Of 1990, Carl W. Tobias

Law Faculty Publications

Ever since the United States Congress passed the Civil Justice Reform Act of 1990 (CJRA), a minor mystery of federal court jurisprudence has been whether - and if so, precisely when - that significant and controversial legislation expired. The measure instituted unprecedented nationwide experimentation with procedures that lawmakers intended to decrease cost and delay in civil litigation, but the statute's implementation additionally balkanized federal practice and procedure.

(Un)Welcome Conduct And The Sexually Hostile Environment, Henry L. Chambers, Jr.

Law Faculty Publications

As courts refine the theory underlying sexual harassment and sex discrimination, the unwelcomeness inquiry may become irrelevant to determining whether gender-based conduct is sexually harassing. In addition, the one possible remaining purpose that the unwelcomeness requirement may serve-providing notice to a putative harasser or its employer-is now served by an affirmative defense applicable to many sexual harassment claims. Consequently, its role should be reexamined. This Article does that. Part I of the Article describes a hypothetical situation that provides a context in which to consider unwelcomeness. Part II provides a brief overview of the evolving sexual harassment jurisprudence. Part III …

Civil Rights In The Cold War, Carl W. Tobias

Law Faculty Publications

Review of Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (2000)

A Case Study Of Sustainable Development: Brownfields, Joel B. Eisen

Law Faculty Publications

Critiquing how brownfields programs expanded without much attention to developments in the international environmental arena will illustrate some ways to alter them to comport with Agenda 21 and other prerequisites for sustainable development. Another interesting aspect of this analysis for the Rio + 10 review is its timing. The state and federal programs have mushroomed since 1992; for example, while a small minority of states had "voluntary cleanup programs" 10 years ago, virtually every state has one now, and there is considerable and increasing experience with them. If adjustments to these programs should be developed to comport with the prescriptions …

Brownfields Redevelopment, Joel B. Eisen

Law Faculty Publications

Critiquing how brownfields programs expanded without much attention to developments in the international environmental arena will illustrate some ways to alter them to comport with Agenda 21 and other prerequisites for sustainable development. Another interesting aspect of this analysis for the Rio+ 10 review is its timing. The state and federal programs have mushroomed since 1992; for example, while a small of states had "voluntary cleanup programs" 10 years ago, virtually every state has one now, and there is considerable increasing experience with them. If adjustments to these programs should be developed to comport with the prescriptions of Agenda 21 …

Tempest In A Teacup Or The Mystique Of Sexual Legal Discourse, Dana Neacsu

Law Faculty Publications

This article is about sex; but not about sex meaning gender, an adjective, or “that thing we are.” It is about sexual behavior. It is, in Professor Franke's words, about sex as verb--“that thing we do”--or, to quote Judge Posner, it is about that “quintessential private activity [of] our culture.” However, it does not focus on sex as “the ultimate animal necessity.” That would be the realm of today's talk shows headed by Jerry Springer and his ilk. Instead, it focuses on the pervasiveness of sexual discourse in the legal realm and tries to explain the reason behind it. This …