Law Commons^™

Timeless And Ahead Of Its Time: Lach's V. Fidelity & Casualty Of New York, Jeffrey W. Stempel

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The publication of Judge Keeton's important article “inventing” the reasonable expectations doctrine in 1971 is notable for infusing a good deal of intellectual energy into the study of insurance law, particularly judicial decisions about insurance coverage. Keeton's article, which deduced from cases the principle that courts tended to interpret policies to vindicate the objectively reasonable expectations of the insured, has rightly been viewed as a milestone. It clarified an area of law long seen as inconsistent or result-oriented. It spurred additional important scholarship in the area and elevated insurance caselaw from something of a backwater to at least a respectable …

The Insurance Aftermath Of September 11: Myriad Claims, Multiple Lines, Arguments Over Ocurrence Counting, War Risk Exclusions, The Future Of Terrorism Coverage, And New Issues Of Government Role, Jeffrey W. Stempel

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September 11, 2001, is an unforgettable date for many reasons. In addition to its political, social, and historical importance, it may mark a watershed of insurance history as well. The value of the insurance losses due to the collapse of the World Trade Center (WTC) towers is estimated to total at least $35 billion and perhaps $75 billion. In addition, most of the people killed by terrorism were covered by life insurance. Many business operations were affected, invoking possible business interruption coverage. The airplanes that became weapons of destruction carried passengers whose estates are likely to press claims against the …

Adjucating Sustainability: New Zealand's Environment Court, Bret C. Birdsong

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New Zealand's Resource Management Act of 1991 (“RMA”) placed the island nation on the world's cutting edge of environmental management by making sustainability the law of the land. The RMA also presents an opportunity to examine a less heralded New Zealand innovation in environmental governance: a specialized, expert court that is focused exclusively on resolving environmental disputes. The Environment Court is a critical institution in New Zealand's effort to move toward sustainable management of the environment. Exercising broad powers to review most of the fundamental issues arising under the RMA, the Court is the primary arbiter of whether activities and …

The Irrational Turn In Employment Discrimination Law: Slouching Toward A Unified Approach To Civil Rights Law, John Valery White

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This Article argues that the Supreme Court's recent disparate treatment decisions under Title VII of the Civil Rights Act of 1964 represent a trend toward unifying all civil rights law under an approach most closely akin to traditional equity. This trend explains the curious tension between substance and process in the Court's most recent decisions, St. Mary's Honor Center v. Hicks and Reeves v. Sanderson Plumbing. It also explains the Court's uncommon confidence in its yet undefined notions of what constitutes discrimination on the basis of the several protected categories recognized in Title VII and related statutes. The trend toward …

Brown V. Board Of Education And The Origins Of The Activist Insecurity In Civil Rights Law, John Valery White

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The peculiar thing about Brown v. Board of Education is that, when it was decided, liberal legal scholars trashed it. Indeed, the modern conservative movement has built its attack on civil rights initiatives and its critique of the judiciary on the disparaging assessments of the opinion offered by Henry Hart, Hebert Wechsler, and Alexander Bickel. This peculiar aspect of Brown has become the keystone supporting all arguments about what is excessive about the modern jurisprudence; federal courts are said to have a realist disposition producing an unbounded, relativistic, interdisciplinary judicial craft and characterized by an activist proclivity. These dual pillars …

The Sounds Of Silence: Waiting For Courts To Acknowledge That Public Policy Justifies Awarding Damages To Third Party Claimants When Liability Insurers Deal With Them In Bad Faith, Francis J. Mootz Iii

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A long-standing and virtually unchallenged doctrinal rule provides that a liability insurance carrier owes no duties in tort or contract to a third-party claimant who has been injured by its insured. As a matter of doctinal consistency and logic, the traditional rule makes some sense. The liability insurer has no contractual relationship with the claimant, and third-party beneficiary doctrine is not easily used to impose duties. Moreover, by stepping into the shoes of the insured tortfeasor to whom it owes a heightened duty of good faith, the insurer is in an adversarial relationship with the claimant that makes it difficult …

The Terrors Of Dealing With September 11th, Christopher L. Blakesley

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No abstract provided.

Multidisciplinary Practice After In Re Enron: Should The Debate On Mdp Change At All?, Nancy B. Rapoport

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No abstract provided.

Empirical Studies Contribute To Death Penalty Debate, Joan W. Howarth

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At a time of renewed scrutiny of capital punishment, Nevada lawyers may be interested in some of the recent legal scholarship on the death penalty based on social science data, rather than on legal philosophy or constitutional theory. Three projects are of particular interest: Professor James Liebman's work on errors in death penalty cases; the National Jury Project's data about how jurors decide capital cases; and David Baldus' recent study of peremptory challenges in capital cases.

Feminist Legal Writing, Kathryn M. Stanchi

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To lay the groundwork for the exploration of feminist legal writing, this Article first summarizes the traditions and conventions of persuasion and persuasive writing-how they are characterized in law and how they are taught in law school. It then summarizes a type of language in linguistic theory called "antilanguage," which is language created by groups in society that are outcasts or otherwise excluded from the dominant social class to rebel against the dominant class. Analyzing several pieces of feminist legal scholarship that use unconventional writing techniques, this Article identifies a type of feminist legal antilanguage. This feminist legal antilanguage uses …

Beware Of The Dark Side Of The Farce, Keith A. Rowley

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No abstract provided.

Corporate Law: A Year In The Life Of Indiana Corporate Law, Leah Chan Grinvald

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The area of corporate law is a broad area, as it can expansively be defined as the law that affects incorporated businesses. Within this definition, other areas of law such as contract, agency and tort law are included because corporations are affected by these laws in one form or other. However, this Article will address only a narrow slice of corporate law, including issues of shareholder lawsuits, the well-established corporate doctrine of piercing the corporate veil, sections of the Indiana Business Corporation Law and sections of the Indiana Securities Act.

Of Orphans And Vouchers: Nevada's "Little Blaine Amendment" And The Future Of Religious Participation In Public Programs, Jay S. Bybee

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In December 1875, President Ulysses S. Grant delivered his last annual message to Congress. He warned of “the dangers threatening us” and the “importance that all [men] should be possessed of education and intelligence,” lest “ignorant men . . . sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft.” He recommended as “the primary step” a constitutional amendment “making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all of the children” and “prohibiting the granting of any school funds, …

The Fiction Of Juvenile Right To Counsel: Waiver In Juvenile Courts, Mary E. Berkheiser

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Although a number of juvenile justice advocates and scholars have decried the prevalence of juvenile waiver of right to counsel, no one has undertaken a comprehensive study of the problem. This Article attempts to fill that gap. The Article begins with a review of the historical context in which juvenile right to counsel arose and proceeds to a discussion of the landmark In re Gault decision and the due process underpinnings of juvenile right to counsel. The Article then chronicles the long-standing practice of permitting juveniles to waive their right to counsel and shows that the vast majority of nearly …

Protection Of Female Prisoners: Dissolving Standards Of Decency, Martin A. Geer

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Almost fifty years ago, the United Nations set standards that reached international consensus and limited male correctional employees’ activities in female inmate residences. These restrictions were of particular importance to women prisoners. It is well documented that female prisoners who are particularly vulnerable, are traumatized by unwanted touching, assault, harassment, and invasion of their physical privacy and integrity. Despite this population’s history and international legal standards, there was a significant turn around in penology. The resulting cross-gender supervision for housing units and body searches became the norm in the United States.

This article examines how the U.S. penal system transposed …

The Un-Balanced Fourth Amendment: A Cultural Study Of The Drug War, Racial Profiling And Arvizu, Frank Rudy Cooper

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In this Article, Professor Frank Rudy Cooper provides a cultural studies approach to the encoding and decoding of the drug war that will allow us to draw important conclusions about the effects of the drug war on the Court. In Part I of this Article, he describes how the field of cultural studies reads popular culture through the analytical tools of "encoding" and "decoding." In Part II, he analyzes why and how law enforcement has encoded the drug war as requiring increased prosecution of drug users and drug dealers. In Part III, he considers how the Court's decoding of law …

Understanding "Depolicing": Symbiosis Theory And Critical Cultural Theory, Frank Rudy Cooper

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Doctrinal analyses help us understand what law does. Identity theory helps us understand why law operates in certain ways. Cultural studies can help us understand that where law operates is crucial to both how it operates, and on whom.

Nancy Ehrenreich's Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems is especially valuable because her symbiosis theory expands identity theory. Ehrenreich turns our attention to the subjectivities of those who are partly subordinated but mostly privileged-those who accept their own oppression in return for the "compensation" of being able to use the law to subordinate others. Nonetheless, symbiosis theory …

Universality And Its Limits: When Research Ethics Can Reflect Local Conditions, David Orentlicher

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No abstract provided.

Conflicts Of Interest And The Constitution, David Orentlicher

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No abstract provided.

Executing White Masculinities: Lessons From Karla Faye Tucker, Joan W. Howarth

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Gender is a constant struggle. Throughout our lives, we contend with multiple unstable and oppositional social constructions of gender, or hierarchies of masculinities and femininities. Knowing, or trying to know, who is male and who is female, and how men and women should act, is a major part of the structure of our identities, our societies, and our democracy. These gender questions are not separate from race or class; together for example, they shape what is expected of a poor young White man or a middle-class, African American grandmother. Racialized and class-based, gender helps to tell us who is frightening, …

From Euclid To Growing Smart: The Transformation Of The American Local Land Use Ethic Into Local Land Use And Environmental Controls, Patricia E. Salkin

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No abstract provided.

Emotional Competence, Multicultural Lawyering And Race, Marjorie A. Silver

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No abstract provided.

Legal And Business Perspectives On Small Business Start-Ups: A Selective, Annotated Bibliography, April L. Schwartz

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No abstract provided.

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman

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No abstract provided.

Faith In Legal Professionalism: Believers And Heretics, Samuel J. Levine

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The prevailing trend within the legal community has been to associate the recent decline of professionalism in the practice of law with the emergence of increasing commercialism, indicating that law has become more a business than a profession. Despite the evidence apparently supporting the position that law has evolved into a business, some scholars have responded by reaffirming the professionalism model, arguing that legal practice remains true to its professional ideals. These scholars admit that the professional paradigm is not without its flaws, but argue that it is more likely to lead to a better practice of law than the …

Trade-Related Aspects Of Intellectual Property Rights And Biotechnology: European Aspects, John Linarelli

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There does not seem to be a widely held view among WTO members of the proper role and scope of TRIPS. One of the main reasons why TRIPS is controversial is because it allocates rights in innovation, some would say beyond the bounds of what a trade agreement should seek to do. The lines of the debate are often conceptualized in terms of 'developing' versus 'developed' country differences. One of the major areas of disagreement is how TRIPS deals with rights in biotechnology. Some developing countries are relatively rich in biodiversity and traditional knowledge but poor in capital and scientific …

The Economics Of Private Law Harmonization, John Linarelli

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No abstract provided.

Why I Teach, Suzanne Darrow Kleinhaus

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No abstract provided.

Sorting Out New York’S Smart Growth Initiatives: More Proposals And More Recommendations, Patricia E. Salkin

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No abstract provided.

Judging Ethics For Administrative Law Judges: Adoption Of A Uniform Code Of Judicial Conduct For The Administrative Judiciary, Patricia E. Salkin

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No abstract provided.