Law Commons^™

Punitive Damages For Constitutional Torts, Michael L. Wells

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Critics complain that punitive damages often serve no good purpose. Whatever the merit of this charge as a general proposition, it is not universally valid across the range of tort suits. This article examines the issues raised by punitive damages for constitutional torts and takes issue with the general failure of commentators on punitive damages to recognize differences between constitutional tort and common law torts. I shall argue that constitutional tort is one area where punitive damage awards are essential to the effective enforcement of our rights. Constitutional tort is a special domain, in which the policy issues that bear …

Vicarious And Personal Liability For Employment Discrimination, Rebecca H. White

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This Article addresses the issues of vicarious and personal liability for employment discrimination as a coherent whole. Part II examines the prevailing view on an employer's vicarious liability for employment discrimination under Title VII, the ADEA, and the ADA. Part II further discusses the exception to vicarious liability that has developed in hostile work environment cases and examines the justifications advanced for that exception. My point here is not so much to debate whether such an exception should exist but to determine whether the arguments against vicarious liability in hostile work environment cases justifiably can be limited to that context. …

Principles Of Insurance Coverage: A Guide For The Employment Lawyer, Francis J. Mootz Iii

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Employment lawyers have witnessed a virtual revolution in the law of employment relations during the past thirty years. Although the federal government intervened substantially in private employment relationships in response to the economic catastrophe of the Great Depression, employers remained largely free of regulation until the explosion of statutes and common law developments that commenced in the 1960s and continues today. Recent developments in common law tort and contract principles are particularly troubling for defense counsel in employment matters, since the resulting doctrinal uncertainty renders it difficult to assess the client's exposure with any assurance until the appeals in the …

Foreward, Symposium: Insurance Coverage Of Employment Disputes, Francis J. Mootz Iii

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This Symposium addresses the most recent insurance coverage issue that requires mastery not only of insurance law concepts but also a rapidly developing area of substantive law. Employers increasingly are finding themselves subject to state and federal regulation of the terms, conditions, and duration of their relationship with employees. The liabilities associated with increased governmental regulation represent a major financial exposure, leading many employers to demand coverage under their various insurance policies. This rapidly evolving area of insurance law achieved some measure of public notice with the recent disclosure that two insurance companies already have paid out nearly a million …

Florida's Property Rights Act: A Political Quick Fix Results In A Mixed Bag Of Tricks, Sylvia R. Lazos

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This Article discusses Florida’s 1995 Property Rights Act, which grants to private property owners an alternative cause of action, outside of takings law, when they are permanently denied reasonable use of their land by regulatory actions. The Act also grants alternative procedures for property owners, outside of the judicial and administrative process. Thus, the Act does not change Florida takings law nor does it alter the substance of Florida's sometimes controversial growth management laws.

This article reviews the political climate that made passage of the Act possible and places the property rights initiative in the historical context of populist politics. …

A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee

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Since the Supreme Court's decision in Griswold v. Connecticut, thousands of law students each year have confronted a confusing debate over the meaning of the Ninth Amendment. Writing for the majority in Griswold, Justice Douglas included the Ninth Amendment among the sources for deriving the “penumbral” right of privacy. More central to this article, in a separate concurrence Justice Goldberg contended that the Amendment provided a basis for the discovery of fundamental human rights beyond those included in the text of the Constitution and the Bill of Rights. In response, the dissenting Justices, Stewart and Black, argued that …

Substantive Due Process And Free Exercise Of Religion: Meyer, Pierce And The Origins Of Wisconsin V. Yoder, Jay S. Bybee

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In this paper the author examines the nature of parents' due process right to direct the education of their children and its relationship to the First Amendment. The article begins with the hardiest of the U.S. Supreme Court's early substantive due process decisions: Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer struck down a Nebraska law forbidding the teaching of foreign language in public or private schools; Pierce struck down an Oregon law requiring attendance at public schools. Part I recounts that the laws in both cases were the result of complex forces, uniting groups as disparate …

Trouble In Transamerica: Deferred Compensation, Contingent Debt, And Overstated Basis, Mary Lafrance

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For many years, owners of motion pictures and television films have optimized the tax benefits of depreciation deductions by employing a broad concept of basis. In addition to their cash investment, these taxpayers have increased their basis to reflect both fixed and contingent liabilities incurred in creating or acquiring these assets. Some of these liabilities represent royalties for the use of intellectual property such as music and literary works incorporated in the film. Others constitute deferred compensation for the services performed by producers, directors, actors, musicians, and others during the production process. The fixed liabilities do not depend on the …

Symbiotic Legal Theory And Legal Practice: Advocating A Common Sense Jurisprudence Of Law And Practical Applications, Jean R. Sternlight

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Lawyers and legal academics are waging a fierce war over the soul of legal education in the United States. The various battles in this war include disputes over the proper emphasis on teaching versus scholarship; the need for clinical, practical, or transaction-oriented education versus the need for theoretical education; and the need for traditional doctrinal work versus the need for interdisciplinary or more liberal arts-oriented education within law schools. The war also plays itself out in discussions over law school hiring and tenure decisions.

In this Article I urge that practice and even the most abstract theory are complementary, not …

Terrorism And Hostages In International Law: A Commentary On The Hostages Convention 1979, Christopher L. Blakesley

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In this piece, Professor Blakesley reviews “Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979” by Joseph J. Lambert.

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

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Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

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The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

Review Of Winifred Fallers Sullivan, Paying The Words Extra: Religious Discourse In The Supreme Court Of The United States (1994), Leslie C. Griffin

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No abstract provided.

Destructuring Disability: Rationing Of Health Care And Unfair Discrimination Against The Sick, David Orentlicher

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No abstract provided.

Avoiding Judicial Wrath: The Ten Commandments For Bankruptcy Practitioners, Nancy B. Rapoport

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This article describes the top ten duties for bankruptcy lawyers. 1. Know the purpose(s) of the Bankruptcy Code. 2. Know the facts and the law. 3. Spend time crafting your arguments. 4. Don't lie (about conflicts of interest or about controlling law). 5. Be respectful (of other lawyers, of the system, and of other participants in the system). 6. Don't indulge your client's sleazy instincts. 7. Don't escalate a conflict unnecessarily. 8. Honor your calendar. 9. Keep your client informed. 10. Don't whine.

Rethinking Civil Rights And Employment At Will: Toward A Coherent National Discharge Policy, Ann C. Mcginley

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America's employment discharge policy begs for reform. Although most states have created exceptions to the employment at will doctrine, the doctrine thrives. Title VII of the Civil Rights Act of 1964 (“Title VII”), which bans discrimination in employment based on race, gender, color, religion, and national origin, has proved ineffective in combating employment discrimination. Despite the statutory and common law exceptions to the employment at will doctrine, today's employees may have less job security than in the past. Although I applaud the Commissioners' efforts toward achieving justice in the workplace, I believe that abolishing the employment at will doctrine through …

“Attitudinal” Decision Making In The Federal Courts: A Study Of Constitutional Self Representation Claims, John R. Quinn

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This Article reports on the performance of a study based on and inspired by Segal and Spaeth's work. It examines the possible attitudinal bases of the entire corpus (over 100 cases) of federal district court decisions involving constitutional self-representation claims. As explained in greater detail below, this area of jurisprudence was selected for study because decisions often are dependent upon the exercise of judicial discretion-Segal and Spaeth's attitudinal factors. This study both elucidates the attitudinal methods of Segal and Spaeth and "proves" an exception to the attitudinal model hypothesized by Segal and Spaeth. That exception is the salience of doctrine …

Corpus Juris Tertium: Redemptive Jurisprudence In Angels In America, John R. Quinn

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No abstract provided.

Admissibility Of Investigatory Reports In § 1983 Civil Rights Actions - A User's Manual, Martin A. Schwartz

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No abstract provided.

The Case For Color-Blind Distress Sales, Michael Lewyn

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No abstract provided.

The Broad Life Of The Jewish Lawyer: Integrating Spirituality, Scholarship And Profession, Samuel J. Levine

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The religious individual faces the constant challenge of reconciling religious ideals with the mundane realities of everyday life. Indeed, it is through the performance of ordinary daily activities that a person can truly observe such religious duties as serving God and loving one's neighbor. For the Orthodox Jew, an intricate set of religious laws and principles governs every area of life. In choosing a career, an Orthodox Jew must therefore be concerned that professional obligations not interfere with the fulfillment of religious ones. While religious duties impose obligations on the religious individual, at the same time they provide opportunities to …

Peace-Building, John Linarelli

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No abstract provided.

Anglo-American Jurisprudence And Latin America, John Linarelli

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No abstract provided.

Women, Just Implementation Of Asylum Policy, And Our Commitment To Human Dignity And Freedom, John Linarelli

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No abstract provided.

The Cult Of Finality: Rethinking Collateral Estoppel In The Postmodern Age, Laura Dooley

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What is a fact, and who gets to say what a fact is? These questions lurk beneath and animate the doctrine of collateral estoppel, or (as we modem types say) issue preclusion, in the law of civil procedure. But neither courts nor scholars have faced these basic questions head-on in considering the efficacy of a doctrine that literally exports findings of fact from one case to other unrelated cases. Instead, discussions about collateral estoppel have focused on the "fairness" of applying the doctrine, particularly in terms of the party to be bound by the predetermined fact and whether it had …

Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine

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Legal scholars have recently advanced theories emphasizing the importance of perspectives in the law. Perspective scholarship recognizes that laws are necessarily shaped by society's dominant forces, including its biases and preconceptions. Perspective scholars attempt to understand how these forces have shaped our laws, and they suggest changes to accommodate those affected by society's biases. In this Article, Professor Levine introduces the concept of a religious minority perspective. He develops the concept of a religious minority perspective in the context of several, prominent Free Exercise cases. Professor Levine discusses these cases in his presentation of the central themes of a religious …

Section 1983 Litigation, Martin A. Schwartz

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No abstract provided.

Rethinking Religion And Public School Education, Marjorie A. Silver

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No abstract provided.

Review Essay: The Challenges Of Religous Neutrality, Samuel J. Levine

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Levine begins this review essay by noting that at the outset of his discussion, Gedicks notes the difficulty one faces in critically engaging Supreme Court decisions in the area of church and state law. Gedicks goes on to premise his analysis on the identification of “competing rhetorical discourses of church-state relations,” through which he attempts to “organize virtually all of religion clause doctrine.” Gedicks applies this phenomenon, which he terms “discourse,” to church and state law. Thus, in The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence, Professor Gedicks succeeds in his goal of providing a …

Fair Housing Act (Symposium: The Supreme Court And Local Government Law: The 1994-95 Term), Leon D. Lazer

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No abstract provided.