Law Commons^™

Breaking The Most Vulnerable Branch: Do Rising Threats To Judicial Independence Preclude Due Process In Capital Cases?, Penny White

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We have been asked this morning to address whether the attacks on the judiciary and the efforts of politicians to change the judiciary so it will do things the politicians want it to do are affecting due process in capital cases. The answer to that question is yes.

In the many states where judges are elected, judges are vulnerable to being voted off the bench for unpopular decisions. Two members of this panel, Charles Baird and Penny White, were voted off courts because of their votes in capital cases. State judges who are subject to elections know that casting any …

Lawyering, Power, And Reform: The Legal Campaign To Abolish The Broad Form Mineral Deed, Dean Rivkin

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No abstract provided.

The Orphan Drug Act: What's Right With It, Gary Pulsinelli

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No abstract provided.

Compelling Arbitration Of Claims Under The Civil Rights Act Of 1866: What Congress Could Not Have Intended, Jean R. Sternlight

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The Civil Rights Act of 1866 was a very special statute, designed at minimum to eliminate all "badges and incidents of slavery" and to ensure that the freed slaves would be provided with civil rights equal to those of white persons. Its enforcement depends on the availability of a neutral public system of justice. Private arbitration cannot assure these characteristics. Thus, courts should not enforce agreements to arbitrate future disputes that may arise under this statute. This Article, however, does not argue that arbitration of claims under the Civil Rights Act of 1866 should be prohibited altogether. Disputants who mutually …

The Independent Counsel Statute: A Premature Demise, Julian A. Cook

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With the backdrop of the impeachment trial of President William Jefferson Clinton, Congress was confronted with the quandary of whether to reauthorize the independent counsel statute. As the statute approached its June 30, 1999 lapse date, lawmakers grappled with and bandied about an array of proposals, including statutory abandonment, in the midst of tremendous political tension and public fervor over the actions of the President, Independent Counsel Kenneth Starr, and members of Congress. Ultimately, Congress allowed the statute to expire, leaving the prosecution of high-ranking Executive Branch officials in the hands of the Department of Justice. Advocates of reauthorization could …

The Law Of Sales Taxes In A Cyberspace Economy, Walter Hellerstein

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This article focuses on three questions of state sales’ tax:

(1) What is the basic structure of states’ sales tax laws and how do these laws apply to electronic commerce?

(2) What are the existing federal constitutional restraints on the states’ power to impose sales taxes and how do those restraints limit the states’ ability to apply their laws to electronic commerce?

(3) What are the restraints on Congress – to whom this commission’s recommendations will be directed – in legislating to limit or expand state taxing power, or otherwise enact rules governing taxation of electronic commerce?

Is It Worth The Trouble? The New Policy On Dissemination Of Information On Off-Label Use Under The Food And Drug Administration Modernization Act Of 1997, Elizabeth Weeks Leonard

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On January 14, 1998 the Food and Drug Administration (FDA) approved the use of a product previously marketed as Excedrin Extra Strength^® for use in treating migraine headaches. As part of the approval for the new use of the product, FDA required the pharmaceutical manufacturer of Excedrin^®, Bristol-Myers Squibb, to relabel and repackage the product. The new product is called “Excedrin Migraine^®” and is sold side-by-side with Excedrin Extra Strength^®. Both over-the-counter (OTC) products contain the same active ingredients: 250 milligrams of acetaminophen, 250 milligrams of aspirin, and sixty-five milligrams of caffeine. Many …

The Business Records Exception To The Hearsay Rule - New Is Not Necessarily Better, Sidney Kwestel

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No abstract provided.

Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz

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No abstract provided.

Emotional Intelligence And Legal Education, Marjorie A. Silver

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The traditional knowledge-based law school curriculum is slowly giving way to one that increasingly exposes students to various lawyering skills. Nonetheless, legal educators are generally averse — or at best ill equipped — to support that training with the empathic and psychological skills good lawyering demands. The author discusses how emotional intelligence is essential to good lawyering and argues that it can and should be cultivated in law school. The article draws upon three examples of popular culture to explore both the absence and possibilities of interpersonal intelligence in the practice of law. The author also describes her own law …

The Constitutionalization Of Ineffective Assistance Of Counsel, Richard Klein

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No abstract provided.

Seeking A Common Language For The Application Of Rule 11 Sanctions: What Is "Frivolous"?, Samuel J. Levine

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In this article, Levine analyzes some of the complex issues involved in attempting to apply the ambiguous concept of frivolousness in the context of Rule 11 sanctions. He documents the inconsistency in judicial interpretation and application of Rule 11 frivolousness. Relying in part on the observations and concerns expressed by scholars, practitioners, and judges themselves who have lamented the lack of uniformity and the troubling results that have followed, Levine examines closely some of the problems inherent in the current standards. After demonstrating the wide range of approaches put forth by both judges and scholars to the interpretation of Rule …

Supreme Court Section 1983 Developments, Martin A. Schwartz

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No abstract provided.

New York City Zones Out Free Expression, Martin A. Schwartz

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No abstract provided.

The World’S Youngest Political Prisoner, Richard Klein

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Every participant at an international human rights conference in June 1998 received a small pamphlet published by Tibetan supporters of Tibetan Buddhism's highest-ranking figure, the Dalai Lama. Entitled "The World's Youngest Political Prisoner," the pamphlet makes a plea for support for a young boy, now nine years old, who the Chinese government has allegedly kidnapped and detained. The Dalai Lama, who has been living in exile for forty years, claims the boy is the eleventh reincarnation of the Panchen Lama, the second holiest individual in Tibetan Buddhism. This battle over the identification of the reincarnation of a holy man is …

Discrimination Cases In The Supreme Court's 1997 Term (The Supreme Court And State And Local Government Law: The 1997-1998 Term), Eileen Kaufman

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No abstract provided.

Radicalism, Racism, And Affirmative Action: In Defense Of A Historical Approach, Deseriee Kennedy

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No abstract provided.

Proceedings Of The 1999 Annual Meeting, Association Of American Law Schools Section On Employment Discrimination Law: Is There A Disconnect Between Eeo Law And The Workplace?, Douglas D. Scherer, James C. Sharf, Richard T. Seymour, Maria O'Brien Hylton, Paulette Caldwell

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No abstract provided.

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

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No abstract provided.

Smart Growth At Century’S End: The State Of The States, Patricia E. Salkin

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No abstract provided.

The Politics Of Land Use Reform In New York: Challenges And Opportunities, Patricia E. Salkin

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No abstract provided.

Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson

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The best time to settle an international business dispute can be after the international arbitration proceeding has been commenced. Just like in court litigation, parties may be ready to settle only after the adjudicatory process has begun and even has progressed. In court, judges commonly open the door to settlement; they hold settlement conferences and even actively participate in settlement negotiations. But arbitrators rarely open the door to settlement; when they do, they risk losing their jobs. So, what can international arbitrators safely do? What dare they do?

In this article, the author explores the dilemma presented when one neutral …

Iola And Daubert (Symposium: The Supreme Court And Local Government Law: The 1997-98 Term), Leon D. Lazer

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No abstract provided.

Critical Race Theory – The Last Voyage, Dan Subotnik

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No abstract provided.

From A Whimper To A Bang: The Trend Toward Finding Occurrence Based Statutes Of Limitations Governing Negligent Misdiagnosis Of Diseases With Long Latency Periods Unconstitutional, Peter Zablotsky

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No abstract provided.

The Imposition Of The Death Penalty In The United States Of America: Does It Comply With International Norms?, Beverly Mcqueary Smith

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No abstract provided.

Witnessing The Process: Reflections On Civil Procedure, Power, Pedagogy, And Praxis, Deseriee A. Kennedy

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No abstract provided.

Suffer The Little Children: Justifying Same-Sex Marriage From The Perspective Of A Child Of The Union, Lewis A. Silverman

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No abstract provided.

Teaching Jewish Law In American Law Schools: An Emerging Development In Law And Religion, Samuel J. Levine

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In recent years, religion has gained an increasing prominence in both the legal profession and the academy. Through the emergence of the "religious lawyering movement," lawyers and legal scholars have demonstrated the potential relevance of religion to many aspects of lawyering. Likewise, legal scholars have incorporated religious thought into their work through books, law journals and classroom teaching relating to various areas of law and religion. In this Essay, Levine discusses one particular aspect of these efforts, namely, the place of Jewish law in the American law school curriculum. Specifically, he outlines briefly three possible models for a course in …

An Introduction To Legislation In Jewish Law, With References To The American Legal System, Samuel J. Levine

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Levine examines the roles of legislative and judicial bodies, in the context of a discussion of broader principles of legislation in the Jewish legal system. In recent years, American legal scholars have increasingly looked to Jewish law as a model of an alternative legal system that considers many of the issues present in the American legal system. In relation to the roles of legislative and judicial bodies, the Jewish legal system provides a particularly illuminating contrast to the American legal system, in part because in Jewish law, the same authority, the Sanhedrin, or High Court, serves in both a legislative …