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Articles 121 - 150 of 150
Full-Text Articles in Law
Fear Of Violence In Our Schools: Is ‘Undifferentiated Fear’ In The Age Of Columbine Leading To A Suppression Of Student Speech?, David L. Hudson Jr.
Fear Of Violence In Our Schools: Is ‘Undifferentiated Fear’ In The Age Of Columbine Leading To A Suppression Of Student Speech?, David L. Hudson Jr.
Law Faculty Scholarship
An essay on the suppression of student speech in the age of mass school shootings.
The Courts’ Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, David L. Hudson Jr., John E. Ferguson Jr.
The Courts’ Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, David L. Hudson Jr., John E. Ferguson Jr.
Law Faculty Scholarship
The majority of courts have cited Bethel v. Fraser in such a way as to give public school officials free reign to censor vulgar, lewd, or plainly offensive student speech. Some courts have gone a step further and prohibited student speech that contains offensive ideas. This article seeks to explain how the Fraser decision curtailed student rights recognized in the Supreme Court's last pure student speech case, Tinker v. Des Moines Independent Community School District.
Balancing Act : Public Employees And Free Speech, David L. Hudson Jr.
Balancing Act : Public Employees And Free Speech, David L. Hudson Jr.
Law Faculty Scholarship
More than 20 million Americans work for federal, state or local governments. Sometimes these employees are disciplined for speaking out against government corruption, belonging to a particular political party, criticizing agency policy or engaging in private conduct of which the employer disapproves. Granted, government employers need some leeway when dealing with their employees. After all, the primary function of a government agency is to provide efficient services to the public, and if a government employer were second-guessed every time it disciplined a public employee, services could grind to a halt. On the other hand, such employers do not have unfettered …
Selected Conceptions Of Federalism: The Selective Use Of History In The Supreme Court's States' Rights Opinions, Lucian E. Dervan
Selected Conceptions Of Federalism: The Selective Use Of History In The Supreme Court's States' Rights Opinions, Lucian E. Dervan
Law Faculty Scholarship
In the period leading to the Civil War, debate over federalism and states’ rights developed into the seeds of a war that would forever change America. Over one hundred years later, the debate over federalism continues, unanswered by the blood of more than half a million soldiers. Over the last decade, the United States Supreme Court has increased state sovereignty and state immunity to levels unseen since the pre-Civil War period. The Court’s opinions are structured in a manner that relies significantly on historical methodologies. The multiple rationales used to structure the Justices’ arguments clash, and the Justices spar with …
Joseph Mccarthy, The Law Student, Jeffrey S. Kinsler
Joseph Mccarthy, The Law Student, Jeffrey S. Kinsler
Law Faculty Scholarship
Much is known about Joseph McCarthy, the United States Senator. A fair amount is also known about Joseph McCarthy, the lawyer and Circuit Court Judge; particularly in his home state of Wisconsin. Not much is known, however, about Joe McCarthy, the law student. This is unfortunate because, arguably, many of the traits that catapulted McCarthy to the top and bottom of American politics were first exhibited in law school. It is a safe bet that very few of the current students at Marquette University Law School (MULS) are even aware that Joe McCarthy is an alumnus (LL.B., 1935) of the …
The Lsat Myth, Jeffrey S. Kinsler
The Lsat Myth, Jeffrey S. Kinsler
Law Faculty Scholarship
Predicting which students will perform well in law school may seem like an impossible task, but law schools endeavor to do so everyday, and the primary tool they use to make such predictions is the Law School Admission Test (LSAT), a standardized, 101-question multiple-choice examination. This article explores whether the LSAT warrants such prominence. Using statistical and anecdotal evidence, this article analyzes recent graduates of Marquette University Law School (MULS) to ascertain whether: (1) the LSAT is a valid predictor of three-year performance in law school; (2) the LSAT is a better predictor of law school performance than the UGPA …
The New Face Of Creationism: The Establishment Clause And The Latest Efforts To Suppress Evolution In Public Schools, Deborah R. Farringer
The New Face Of Creationism: The Establishment Clause And The Latest Efforts To Suppress Evolution In Public Schools, Deborah R. Farringer
Law Faculty Scholarship
If America wants to stay at the forefront of scientific study and remain competitive with other nations, its students must be taught scientific principles that are generally applied in the global scientific community. Thus, the implications involved in the latest battles over God and science extend beyond whether to teach controversial subjects, and could have a significant effect on the future of American schools. These problems warrant the development of a new test, or new legal analysis, that will enable the Court to deal with this latest chapter in the heated evolution and creationism debate. This Note examines the evidentiary …
Censorship Of Student Internet Speech: The Effect Of Diminishing Student Rights, Fear Of The Internet And Columbine, David L. Hudson Jr.
Censorship Of Student Internet Speech: The Effect Of Diminishing Student Rights, Fear Of The Internet And Columbine, David L. Hudson Jr.
Law Faculty Scholarship
Analysis and examination of the case law of student Internet website speech created off campus.
Florida Professional Responsibility In 1999: The Rules Of The Game, Timothy P. Chinaris, Elizabeth Clark Tarbert
Florida Professional Responsibility In 1999: The Rules Of The Game, Timothy P. Chinaris, Elizabeth Clark Tarbert
Law Faculty Scholarship
The year 1999 saw a number of changes and developments in Florida professional responsibility law. This article surveys these developments by reviewing: 1) relevant reported cases; 2) ethics opinions; 3) rules changes; and 4) disciplinary actions affecting lawyers and the practice of law in the Sunshine State. These authorities are examined in the context of the various relationships upon which a lawyer's professional life is built and within which the lawyer typically operates.
Professional Responsibility: 1998 Survey Of Florida Law, Timothy P. Chinaris, Elizabeth Clark Tarbert
Professional Responsibility: 1998 Survey Of Florida Law, Timothy P. Chinaris, Elizabeth Clark Tarbert
Law Faculty Scholarship
Continuing a trend, 1998 included a number of important developments in the area of professional responsibility law in Florida. Significant appellate court decisions, rule changes, and disciplinary actions potentially affect the practices of more than 58,000 members of The Florida Bar. This article reports and summarizes those developments by placing them in the framework of the various relationships in which lawyers typically operate. Part II looks at decisions affecting what must be viewed as the central relationship in this context: the relationship between lawyer and client. Part III examines developments pertaining to what may be the dominant relationship: the lawyer's …
Professional Responsibility: 1997 Survey Of Florida Law, Timothy P. Chinaris, Elizabeth Clark Tarbert
Professional Responsibility: 1997 Survey Of Florida Law, Timothy P. Chinaris, Elizabeth Clark Tarbert
Law Faculty Scholarship
Professional responsibility law in Florida continued to expand in 1997. Case law, rules, and ethics opinions amplified and, in some areas, extended the duties that lawyers assume as officers of the judicial branch of government. This article examines professional responsibility decisions that are likely to affect the relationships that lawyers have with clients, former clients, judges, third parties, and The Florida Bar. Part II looks at developments affecting the most important relationship that lawyers establish and operate within: the relationship between lawyer and client. Part III reviews developments of significance to the lawyer's relationship to the court and the judicial …
A Comparative Proposal To Reform The United States Gift Tax Annual Exclusion, Jeffrey S. Kinsler
A Comparative Proposal To Reform The United States Gift Tax Annual Exclusion, Jeffrey S. Kinsler
Law Faculty Scholarship
This Article analyzes the U.S. gift tax annual exclusion, the main exemption to U.S. gift tax laws. The Article develops the history and purpose of the gift tax annual exclusion to demonstrate that the current system does not accomplish its original purposes. The Article concludes that reform is needed and proposes legislation to simplify the gift tax laws and create a more equitable gift tax law system. The Article uses the gift tax laws of New Zealand, the United Kingdom, Japan, and the Netherlands as models for U.S. gift tax reform legislation.
The Secondary Effects Doctrine: 'The Evisceration Of First Amendment Freedoms', David L. Hudson Jr.
The Secondary Effects Doctrine: 'The Evisceration Of First Amendment Freedoms', David L. Hudson Jr.
Law Faculty Scholarship
An analysis of First Amendment Jurisprudence and the Secondary Effects Doctrine.
Professional Responsibility: 1996 Survey Of Florida Law, Timothy P. Chinaris
Professional Responsibility: 1996 Survey Of Florida Law, Timothy P. Chinaris
Law Faculty Scholarship
The prudent practitioner will note a number of changes, some of them quite substantial, to Florida's professional responsibility landscape in 1996. Courts and ethics committees rendered decisions affecting obligations that Florida lawyers assume as they interact with prospective clients, clients, judges, other lawyers, nonlawyer assistants, third parties, and disciplinary authorities. This article examines significant cases and ethics opinions in the context of the different roles which lawyers assume during the course of their relationships with these individuals and entities. Part II explores the traditional role of the lawyer as a zealous advocate for the client. This section reviews developments of …
Professional Responsibility Law In Florida: The Year In Review, 1995, Timothy P. Chinaris
Professional Responsibility Law In Florida: The Year In Review, 1995, Timothy P. Chinaris
Law Faculty Scholarship
The past year saw a number of interesting and innovative developments in Florida's professional responsibility jurisprudence. This article reviews significant Florida court decisions, ethics rules, and advisory ethics opinions handed down during the year that are likely to affect Florida lawyers as they attempt to represent their clients zealously while complying with the letter, if not always the spirit, of the Florida Rules of Professional Conduct ("RPC"). Today's lawyer may act in many different capacities, at times assuming the role of advocate, advisor, counselor, fiduciary, intermediary, businessperson, or marketer. The lawyer must adhere to a host of sometimes-overlapping ethical obligations …
Requests For Admission In Wisconsin Procedure: Civil Litigation's Double-Edged Sword, Jeffrey S. Kinsler
Requests For Admission In Wisconsin Procedure: Civil Litigation's Double-Edged Sword, Jeffrey S. Kinsler
Law Faculty Scholarship
Requests for admission are the most effective, but least utilized, form of discovery. Interrogatories, document production requests and depositions are routinely used in civil litigation, but as few as ten percent of attorneys use requests for admission. Admissions have the potential to simplify legal and factual issues, expedite civil litigation, and reduce costs for clients, lawyers and taxpayers. Requests for admission have proven to be an effective discovery device in many types of civil actions,and nothing expedites discovery and brings the litigation to a head faster than requests for admission. Despite such enormous potential, Wisconsin trial lawyers have been extremely …
Politically Incorrect, Jeffrey S. Kinsler
Politically Incorrect, Jeffrey S. Kinsler
Law Faculty Scholarship
Review of Politically Correct Bedtime Stories, James Finn Garner. New York: MacMillan Publishing Company. 1994. 79 pp. $8.95.
Motor Freight Brokers: A Tale Of Federal Regulatory Pandemonium, Jeffrey S. Kinsler
Motor Freight Brokers: A Tale Of Federal Regulatory Pandemonium, Jeffrey S. Kinsler
Law Faculty Scholarship
Motor freight brokers are the connecting link between shippers and carriers, uniting shippers who have cargo to deliver with carriers who have available motor transportation. Acting as traffic managers for shippers and sales agents for carriers, brokers arrange thousands of transactions each day, many of which either start or end up in the international stream of commerce. If used effectively, brokers can lower the transportation costs of domestic and international shippers and increase the revenue of carriers, which ultimately will stimulate interstate and overseas trade. International shippers must often rely on freight brokers to arrange motor transportation for their freight …
Sensible Application Of Stare Decisis Or A Rewriting Of The Constitution: An Examination Of Helling V. Mckinney, Jeffrey S. Kinsler
Sensible Application Of Stare Decisis Or A Rewriting Of The Constitution: An Examination Of Helling V. Mckinney, Jeffrey S. Kinsler
Law Faculty Scholarship
In Helling v. McKinney, the Supreme Court held that compelled exposure to environmental tobacco smoke ("ETS") may constitute cruel and unusual punishment in violation of the Eighth Amendment. Section I of this article explores the medical evidence linking ETS to lung cancer, heart disease and certain other health risks in nonsmokers. Section II examines the history of the Eighth Amendment's ban on cruel and unusual punishment, particularly as it relates to dangerous or unhealthy prison conditions. Section III analyzes the decision in Helling v. McKinney. Section IV questions whether a judicial ban on smoking would itself constitute cruel and unusual …
Targeted, Direct-Mail Solicitation: Shapero V. Kentucky Bar Association Under Attack, Jeffrey S. Kinsler
Targeted, Direct-Mail Solicitation: Shapero V. Kentucky Bar Association Under Attack, Jeffrey S. Kinsler
Law Faculty Scholarship
Attorneys have been reluctant to take part in advertising and solicitation since the United States Supreme Court specifically allowed their use sixteen years ago. Of those attorneys who have advertised or solicited, most have used the traditional forms of advertising such as television, radio, and print media. Attorneys have been particularly averse to direct-mail solicitation, which may be the most effective form of advertisement. Prior to 1988, the scarcity of attorney solicitation could be explained by the unsettled nature of the governing law. In that year, however, the Supreme Court finally clarified the law regarding targeted, direct mail solicitation by …
Native American Restricted Allotments: A Surviving Spouse's Elective Share Rights, Jeffrey S. Kinsler
Native American Restricted Allotments: A Surviving Spouse's Elective Share Rights, Jeffrey S. Kinsler
Law Faculty Scholarship
Nearly all states have laws that prohibit decedents from disinheriting their spouses. In these states, if a surviving spouse is disinherited, the spouse may renounce the will and elect to take a certain percentage of the decedent's estate. In Oklahoma and Nebraska, for instance, a surviving spouse may elect to take one-half of the decedent's estate in lieu of the devises, if any, made for the surviving spouse in the will. These "elective share" statutes afford long-term financial security for surviving spouses. A century ago, Native Americans acquired real estate by allotment. Under the allotment system, the federal government issued …
The Proper Location Of Party-Depositions Under The Federal Rules Of Civil Procedure, Jeffrey S. Kinsler
The Proper Location Of Party-Depositions Under The Federal Rules Of Civil Procedure, Jeffrey S. Kinsler
Law Faculty Scholarship
Federal Rules of Civil Procedure provide numerous mechanisms for noticing and conducting party-depositions, but they are silent about location. Determining the proper location of party-depositions requires a foray into a confusing, and sometimes inconsistent, line of case law. For instance, some courts hold that the proper location to depose a corporate representative is the judicial district in which the corporation maintains its principal place of business, while others suggest that it is the district in which the suit is pending. This Article clarifies the law concerning the proper location of party-depositions and proposes a hard-and-fast rule for determining the appropriate …
Exposure To Tobacco Smoke Is More Than Offensive, It Is Cruel And Unusual Punishment, Jeffrey S. Kinsler
Exposure To Tobacco Smoke Is More Than Offensive, It Is Cruel And Unusual Punishment, Jeffrey S. Kinsler
Law Faculty Scholarship
In McKinney v. Anderson, the Ninth Circuit Court of Appeals found that compelled exposure to environmental tobacco smoke (ETS) may constitute cruel and unusual punishment. The Fifth, Seventh, and Tenth Circuits, however, have reached the opposite conclusion. The Supreme Court should affirm the Ninth Circuit's ruling in McKinney for two reasons. First, the medical evidence introduced since the Ninth Circuit decided McKinney confirms that court's belief "that the attitude of our society has evolved at least to a point that it violates current standards of decency to expose unwilling prisoners to ETS levels that pose an unreasonable risk of harm …
Punitive Damages: A Supporting Theory, Harold See
Punitive Damages: A Supporting Theory, Harold See
Law Faculty Scholarship
Scholarly opinion overwhelmingly opposes the trend toward truly punitive damages. If Lord Keynes's observation is correct, then damages intended to punish are, after only a brief maturity, condemned to pass away. The winds of the popular and judicial summer will carry them off because there is no hedgerow of theory to break that wind and hold them fast.
Punitive Damages: Introduction And Synopsis, Harold See
Punitive Damages: Introduction And Synopsis, Harold See
Law Faculty Scholarship
An introduction and synopsis of the 1989 symposium on punitive damages sponsored by the University of Alabama School of Law and the Alabama Law Review.
Criteria For The Evaluation Of Law School Examination Papers, Harold See
Criteria For The Evaluation Of Law School Examination Papers, Harold See
Law Faculty Scholarship
It is a generally accepted proposition that grades should be determined in a systematic manner based on individual performance. It is hardly more controversial that the criteria by which student performance is judged should be known in advance by the students. Economic analysis of law teaches us that if students behave rationally, their performances will reflect the criteria by which they understand their performances will be evaluated. Analysis of a set of examination papers should reveal the criteria those students believed were to be applied to them. Weighted frequency of occurrence obviously determines the respective weights students believe are assigned …
Limit Pricing And Predation In The Antitrust Laws: Economic And Legal Aspects, Harold See, William D. Gunther
Limit Pricing And Predation In The Antitrust Laws: Economic And Legal Aspects, Harold See, William D. Gunther
Law Faculty Scholarship
The overwhelming view in the economic literature is that limit pricing, the practice of establishing a non-profit-maximizing price with the intention of deterring entry of others into the market, either does not make economic sense or, in any event, does not have anticompetitive effects. This article will take a systematic look at the legal status of the limit price doctrine and propose its proper role.
An Alternative To The Contingent Fee, Harold See
An Alternative To The Contingent Fee, Harold See
Law Faculty Scholarship
The most frequent attack on the contingent fee is that it is "unprofessional." Support for the contingent fee has been based on the argument that it encourages the lawyer to work harder because the lawyer's own compensation depends on the outcome of the case and on the argument that it enables a poor person with a valid claim to secure representation. The attorney-client relationship is built on a foundation that assumes certain incentives operate on the parties. The Code of Professional Responsibility attempts to assure that the incentives for attorneys are consistent with the interests of the client and that …
Copyright Ownership Of Joint Works And Terminations Of Transfers, Harold See
Copyright Ownership Of Joint Works And Terminations Of Transfers, Harold See
Law Faculty Scholarship
Under the terms of section 24 of the Copyright Act of 1909, the death of Oscar Hammerstein in 1960 resulted in the "partnership" of Richard Rogers and (Mrs.) Oscar Hammerstein (and James and William Hammerstein, and Alice Hammerstein Mathias, his children-the latter two by a previous marriage), in the ownership of such works as Oklahoma, Carousel, and South Pacific. Oscar Hammerstein may have wanted it that way, but want it or not, he was powerless under the Copyright Act to change the arrangement. Numerous works are the product of the combined efforts of more than one author. Such joint authorship …
The Judiciary And Dispute Resolution In Japan: A Survey, Harold See
The Judiciary And Dispute Resolution In Japan: A Survey, Harold See
Law Faculty Scholarship
An overly brief and misleadingly simple history of the evolution of Japanese legal institutions would begin with the proposition that a century and a quarter ago Japan was a feudal society. By "opening" to the West, Japan was forced to "modernize" (Westernize) its laws. As a code system is easier than a common law system to impose wholesale on a society, the continental European civil law countries served as a model for Japan, which patterned its codes primarily on the civil code of Germany and the criminal code of France. After defeat in the Second World War and subsequent occupation …