Law Commons^™

International Judicial Assistance, Christopher L. Blakesley

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The general or even specialized practitioner faces serious difficulties as the world shrinks and the practice of law frequently transcends international boundaries. In the civil and commercial arena, issues of discovery and service of documents abroad, others relating to judicial assistance from foreign courts, available to American courts or individual litigants, and assistance available from American courts for foreign governments and individual litigants, can be mindboggling. In an age where transnational litigation (that is, domestic litigation that touches upon one or more foreign jurisdictions) is rapidly increasing, counsel could be guilty of malpractice if counsel takes action abroad that proves …

Book Review, Mary Lafrance

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Learning the business side of the film industry can be a daunting task. On-the-job training is treacherous, basic texts quickly become outdated, and treatises can overwhelm with detail. Moreover, it is one thing to know the general outlines of the business and legal aspects of film production, and quite another to feel prepared to negotiate a contract. This is particularly true in the area of film financing, where new techniques emerge with every deal. Producing, Financing and Distributing Film fills a unique niche by providing a concise one-volume introduction to the business side of film that is detailed and transaction-oriented. …

Prolegomena To A Meaningful Debate Of The “Unwritten Constitution” Thesis, Thomas B. Mcaffee

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Seventeen years ago Professor Grey launched the modern debate over the idea of an unwritten Constitution by suggesting that the key to defending modern fundamental rights decision-making might be to rediscover the founding generation's commitment to natural law and unwritten sources of basic rights. Some modern Supreme Court decisions, Grey suggested, might be better justified by reliance upon the methodology suggested by Justice Chase's famous opinion in Calder v. Bull than by looking to the justification for judicial review offered by Chief Justice Marshall in Marbury v. Madison. Grey's arguments for the unwritten Constitution idea has struck a chord …

Book Review, Thomas B. Mcaffee

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Chief Justice Marshall's legendary opinion in Marbury v. Madison has always been the centerpiece of debate over the legitimacy and scope of the power of judicial review. Unsurprisingly, then, Robert Lowry Clinton's thesis that recent arguments about the judicial power reflect a modem revisionism centers on the claim that the famous opinion has been pervasively misunderstood in modem scholarly thought. Clinton's Marbury v. Madison and Judicial Review develops the view that Marbury was written to defend a very limited defensive power of courts to disregard statutes that conflict with constitutional provisions that directly govern the judicial function. The modem view …

Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben

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During the two-hundred-year history of the Bill of Rights, the Supreme Court occasionally has used those first ten Amendments to constitutionalize state common-law torts. In this essay, Professor Elaine Shoben argues that the Court would be well advised to forgo that practice. Pointing to the Court's experience in constitutionalizing defamation law under the First Amendment, Professor Shoben says when the Court meddles in state tort law, the result is a highly complex and very unsatisfactory body of law. On the Bicentennial of the Bill of Rights, this author recommends that if the Court feels compelled to reform a state common-law …

State Support Of International Terrorism: Legal, Political And Economic Dimensions, Christopher L. Blakesley

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In this piece, Professor Blakesley reviews “State Support of International Terrorism: Legal, Political, and Economic Dimensions” by John F. Murphy.

The Statutory And Constitutional Limits Of Using Protected Speech As Evidence Of Unlawful Motive Under The National Labor Relations Act, Rebecca White

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A difficulty inherent in cases under the National Labor Relations Act (NLRA), as in other areas of employment law, is in determining why the employer acted. Perhaps an even harder question, and one too frequently overlooked, is what form of evidence the National Labor Relations Board (NLRB or Board) and any reviewing court properly may consider in determining motive. More specifically, can the Board take into account an employer's vigorous opposition to the union in deciding whether or not a particular action was motivated by antiunion animus? Although common sense suggests yes, several courts of appeals have said no, relying …

Filling Gaps In The Close Corporation Contract: A Transaction Cost Analysis, Charles R.T. O'Kelley

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This Article develops a more refined transaction-cost based theory which explains: why rational investors in jointly owned, closely held firms initially choose corporate form; why they leave the contractual gaps that they do; and how efficiency-minded judges should respond to postharmony disputes made possible by the form chosen and the gaps left. My theory takes into account not only the possibility that investors should have chosen partnership law, but also the advantages and disadvantages of organizing production as an implicit team, via long-term contracts between separate businesses or as a sole proprietorship. In explicating this theory of form choice, the …

(Un)Luckey V. Miller: The Case For A Structural Injunction To Improve Indigent Defense Services, Rodger D. Citron

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No abstract provided.

When First Amendment Values And Competition Policy Collide: Resolving The Dilemma Of Mixed-Motive Boycotts, Kay P. Kindred

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In a representative democracy, government must protect the rights of its citizens to express ideas, to voice grievances, and to seek to influence government. The first Amendment safeguards these fundamental political rights from government intrusion. In a free market economy, government must protect trade and commerce from activities and influences that lead to increased concentrations of economic power or that otherwise tend to restrain competition. The antitrust laws, specifically the Sherman Act, seek to safeguard the competitive process from restrictive trade practices. Conflict arises when efforts to influence government threaten to undermine competition.

Nowhere is the clash between First Amendment …

Postmodern Constitutionalism As Materialism, Francis J. Mootz Iii

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Professor J.M. Balkin’s recent essay in Michigan Law Review assesses the implications that postmodernism holds for constitutional law. Although I agree with Balkin about many of the specific issues that he believes must be addressed in a postmodern constitutionalism, I find that his manner of talking about postmodernism is unproductive in an important way. Balkin quite correctly argues that a postmodern constitutionalism should not mimic the fragmented and superficial culture of postmodernity, nor should it devolve simply to normative claims that postmodernity is desirable and should be embraced or adopted within the law. However, Balin’s thesis that a postmodern constitutionalism …

Reed Dickerson’S Originalism — What It Contributes To Contemporary Constitutional Debate, Thomas B. Mcaffee

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In this article the author offers his personal gratitude for the work of Reed Dickerson, along with some thoughts on his important contributions to our understanding of the interpretive process. As a young scholar in need of help in grappling with the continuing debate over constitutional interpretation, the author turned, at the suggestion of colleagues, to Reed Dickerson’s impressive book on statutory interpretation. The hours spent attempting to ingest Reed’s thoughtful work were amply rewarded, and the author took the occasion of publishing an article on the original intent debate to refer in an initial footnote to his intellectual debt …

The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee

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The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is no question that this Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government. But there is an ongoing debate as to nature of these additional rights retained by the people and as to the sort of claim they might support against the exercise …

Honoring The Law In Communities Of Force: Wildman And Terrell's Teleology Of Practice, Linda H. Edwards, Jack L. Simmons

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When King & Spalding publicly reflects upon itself, through its Managing Partner and its Director of Professional Development, it has improved our profession. All of us profit when a powerful law firm searches for itself. But reflection alone, as Terrell and Wildman know, does not improve the professionalism or the morality of our practice. In order for reflection to work this way it must be based upon a good teleology. Terrell and Wildman offer a teleology of practice in which lawyers are to become people who honor the law. This is justified, they tell us, because the law alone holds …

Where Were The Lawyers?, Mary E. Berkheiser, Ed Hendricks

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In March 1992, the Office of Thrift Supervision sent shock waves through the legal community when it initiated a $275 million enforcement actions against New York’s Kaye, Scholer, Fierman, Hays & Handler and froze the firm’s assets, all based on the firm’s alleged misdeeds in representing the now-defunct Lincoln Savings & Loan. The OTS action, together with the recent spate of prefessional liability suits by the Resolution Trust Corporation and the Federal Deposit Insurance Corporation, raises questions with far-reaching consequences for the legal profession. Perhaps most disturbing, particularly in light of the OTS’s unprecedented assault on Kaye, Scholer, is the …

The Need For An International Criminal Court In The New International World Order, Christopher L. Blakesley

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Any inquiry into the merits of an international criminal court must start with resolving three basic issues:

1. Can the tribunal improve international cooperation in law enforcement, add to the capabilities of the various nations in matters of international criminal law, or contribute in any incremental way to the solution of international and transnational criminal law problems by improving the current practice and enhancing the effectiveness of all concerned?

2. Will the recommended system have a better or equal chance of operating as effectively as the best existing systems of national criminal justice?

3. Will the recommended system improve efficiency …

Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel

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With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of …

The Continuing Availability Of Retaliatory Discharge And Other State Tort Causes Of Action To Employees Covered By Collective Bargaining Agreements, Peter Zablotsky

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No abstract provided.

"Academic Challenge" Cases: Should Judicial Review Extend To Academic Evaluations Of Students?, Thomas A. Schweitzer

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No abstract provided.

Louisiana Family Law, Christopher L. Blakesley

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No abstract provided.

Nurturing The Impulse For Justice, Lynne Henderson

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No abstract provided.

Review Essay: Feminism, Lawyering, And Death Row, Joan W. Howarth

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Representing men on death row is confounding, but not without reward. This lawyering work has taught me at least two lessons, the subjects of this essay. First, capital punishment--our attempt to use legal procedures to kill people fairly--is a feminist issue, or should be. Second, death row representation is too big a job for lawyers; we need to recruit poets. To develop these ideas, and perhaps to convince you without requiring you to undertake the same path to these conclusions, I am appropriating novelist Beverly Lowry's stunning new book, Crossed Over: A Murder, A Memoir. Crossed Over is the story …

A Primer On Resolving Disputes: Lessons From Alternative Dispute Resolution, Harold I. Abramson

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No abstract provided.

Developing A World Vision: An Introduction To International Environmental Policy, Beverly Mcqueary Smith

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No abstract provided.

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

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No abstract provided.

Lee V. Weisman And The Establishment Clause: Are Invocations And Benedictions At Public School Graduations Constitutionally Unspeakable?, Thomas A. Schweitzer

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No abstract provided.

Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel

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No abstract provided.

Tort Remedies For Victims Of Domestic Abuse, Douglas D. Scherer

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This Article discusses the use of intentional tort actions by victims of domestic abuse who seek monetary damages. Part I discusses the phenomenon of domestic abuse, with emphasis on physical and emotional harm and factures that justify punitive and compensatory damage awards. Part II discusses the torts of battery, assault and intentional infliction of emotional distress, and the appropriateness of these actions in domestic abuse cases. Part III discusses the interspousal immunity doctrine and demonstrates the limited extent to which the doctrine bars domestic abuse tort actions. Finally Part IV discusses judicial acceptance of tort actions in domestic abuse cases. …

Fragments On The Deathwatch, Louise Harmon

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No abstract provided.

(Un)Luckey V. Miller: The Case For A Structural Injunction To Improve Indigent Defense Services, Rodger D. Citron

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No abstract provided.