Law Commons^™

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

Scholarly Works

In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …

On Bringing The Justice Mission Conference Back Home, Marjorie A. Silver

Scholarly Works

No abstract provided.

Race And The Core Curriculum In Legal Education, Fran Ansley

Scholarly Works

No abstract provided.

Can International Law Provide Extra-Constitutional Protection For Excludable Aliens?, Louis B. Sohn

Scholarly Works

This paper focuses on the problems of those who do not qualify for a regular admission as refugees, but are detained at the entrance point, or are detained in the United States after being released on temporary parole or pending repatriation. The thesis I shall try to defend is that these persons must be treated according to basic rules of humanitarian law; that they are entitled to be treated as human beings, regardless of any particular legislation or administrative regulations depriving them of basic legal protection granted to citizens and regular residents of the country.

The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw

Scholarly Works

No abstract provided.

Mindlessness And The Law, Paul J. Heald, James E. Heald

Scholarly Works

No less an authority than Milton Friedman has argued that improving the realism of assumptions in economic theory, although hardly essential to establishing the absolute validity of the theory (purely an empirical question), may offer several benefits. First, a “restructuring” (to use Posner's term) of an assumption may help explain divergences between predicted and observed results. Second, an explanation of why a seemingly unrealistic assumption does not destroy the predictive value of a theory may strengthen the theory by connecting it to “a more general theory that applies to a wider variety of phenomena . . . and has failed …

A Slave's Marriage: Dowry Or Deposit, Alan Watson

Scholarly Works

This articles examines the concept of dowry among marriage of slaves in ancient Rome.

The Georgia Jury And Negligence: The View From The Bench, R. Perry Sentell Jr.

Scholarly Works

It is virtually impossible to think seriously about torts and not think of negligence; it is virtually impossible to think seriously about negligence and not think of the jury. The staples of the common-law negligence system--striking a liability profile, and assessing a causal loss--are the staples of the civil jury province. The historic inevitableness of the fact, however, has never put the matter beyond reflection, scrutiny, reconsideration, challenge, nor controversy. Assuredly, controversy.

United States Telecommunications Trade Policy: Critique And Suggestions, Glenn Harlan Reynolds

Scholarly Works

No abstract provided.

Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells

Scholarly Works

Whether there is parity between federal and state courts has become a central question in the law of federal courts, dividing judges and commentators into two well-defined camps. Although the issue rarely arose thirty years ago, it now enters into virtually every discussion of the rules concerning access to federal court for constitutional claims. On one side of the debate, advocates of broad federal jurisdiction over constitutional challenges to state action claim that federal courts are better than state courts at adjudicating these controversies. On the other side, advocates of state court jurisdiction insist that state courts are fully adequate …

Federal Intellectual Property Law And The Economics Of Preemption, Paul J. Heald

Scholarly Works

In the Sears/Compco decisions, the United States Supreme Court established that federal patent law preempts state prohibitions on the mere copying of unpatented product configurations. After years of harsh criticism by commentators, apparent rejection by the lower courts, and allegedly inconsistent treatment by the Court itself, most had proclaimed this principle far beyond resuscitation. The Court, however, miraculously resurrected the principle in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., which unanimously reaffirmed that intentional copying often should be privileged under federal law. In so doing, the Court provided an expressly economic rationale to be used in future determinations …

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

Scholarly Works

The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

Justice Scalia And The Commerce Clause: Reflections Of A State Tax Lawyer, Walter Hellerstein

Scholarly Works

This paper considers Justice Scalia's substantive views of the restraints that the commerce clause imposes on state taxation. My purpose is to examine critically Justice Scalia's dormant or "negative" commerce clause analysis of the state tax issues on which he has opined and to draw from that examination some general conclusions about Justice Scalia's commerce clause jurisprudence.

The Finnigan Case: A Reply To Vogelenzang's Second Stage Apportionment Of Unitary Income, Walter Hellerstein, Jerome R. Hellerstein

Scholarly Works

In this article J. Hellerstein and W. Hellerstein take issue with arguments made by Pierre Vogelenzang in a special report in Tax Notes that California’s second-stage apportionment of the income of a unitary business amounts to unconstitutional extraterritorial taxation. In the Finnigan case, the California State Board of Equalization held that sales made into California by a corporation that is not itself taxable in California, but is a member of a unitary group that is taxable there, are includable in the numerator of the state’s sales factor in apportioning income. The authors defend this result, arguing that the separate identity …

The Constitutional Case Against Intracircuit Nonacquiescence, Dan T. Coenen

Scholarly Works

A cornerstone of the United States Constitution is its separation of powers among the legislative, executive, and judicial branches of the national government. The Framers of the Constitution reasoned that separated powers would guard against tyranny by blocking the undue concentration of authority in any single governmental department. In crafting the Constitution, however, the Framers could not anticipate every dispute their scheme of separated powers might engender. One modern separation-of-powers conflict not specifically anticipated by the constitutional text involves so-called "intracircuit nonacquiescence.”

Intracircuit nonacquiescence occurs when executive-branch decision makers refuse to follow a circuit court's precedents even when acting subject …

Broken Promises Revisited: The Window Of Vulnerability For Surviving Spouses Under Erisa, Camilla E. Watson

Scholarly Works

While there are pervasive problems with the current ERISA legislation, this Article will focus only on survivor benefits and will concentrate in particular on the short-term marriage provision. This Article will maintain that facial neutrality notwithstanding, the short-term marriage provision is discriminatory in effect, grounded in dubious logic, and unsupportable from a historical perspective. In order to demonstrate this, this Article will delve thoroughly into the historical development of ERISA, with particular emphasis on the survivor benefit provisions. The depth to which this Article plumbs the general development of ERISA is intended to demonstrate the weak historical foundation on which …

Chaos And The Court, Glenn Harlan Reynolds

Scholarly Works

Inspired by Laurence Tribe's "The Curvature of Constitutional Space," this Essay looks at some constitutional theorists' desire for certainty and predictability in law, and notes that such certainty and predictability is much less available even in the hard sciences than is generally believed, with simple and determinate systems sometimes producing wildly unpredictable results. It suggests that predictability of results may be a difficult goal for legal theorists, and offers some thoughts on alternative approaches.

The True Sale Of Loans And The Role Of Recourse, Thomas E. Plank

Scholarly Works

No abstract provided.

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Law's Patriarchy, Lynne Henderson

Scholarly Works

No abstract provided.

Reactions To Opression: Jurisgenesis In The Jurispathic State, John Valery White

Scholarly Works

This Note offers a model for analyzing the political and legal traditions of oppressed communities and developing a jurisprudence that accurately reflects the communities' views. Under this model, each of these diverse views can be understood from one of four perspectives: parochialism, fatalism, neo-liberalism, and individualism. These four perspectives are defined by an oppressed community's members' aspirations for liberation. Different ideals of justice and liberation underlie each perspective. Though touching on some of the communities' sentiments, the examinations of scholars of color have thus far been largely piecemeal, overemphasizing certain views, unwittingly combining divergent views, or marginalizing and dismissing unpopular …

The Role Of Legal Scholars In The Confirmation Hearings For Supreme Court Nominees—Some Reflections, Thomas B. Mcaffee

Scholarly Works

Until recently legal scholars have traditionally not been much involved in the process of confirming Justices. As the legal and political ideology of prospective Justices have come to play an important role in the process of nomination and confirmation, however, it is perhaps inevitable that legal scholars would also become more involved. At least since the nomination of Judge Bork, legal scholars have contributed in unprecedented numbers both to the Senate's deliberation process and to the public debate over the fitness of the nominees to the Court. The Bork hearings themselves were, of course, the watershed, and they remain, for …

Time For A New Approach: Why The Judiciary Should Disregard The "Law Of The Circuit" When Confronting Nonacquiescence By The National Labor Relations Board, Rebecca H. White

Scholarly Works

The National Labor Relations Board has been criticized for its nonacquiescence policy, under which the Board interprets the national Labor Relations Act, issues an order, and then defends this order before a circuit court that previously had rejected the Board's interpretation of the Act. In this Article, Professor Rebecca White begins by stating that the NLRB's nonacquiescence policy is both lawful and proper. From this basic premise, White then argues that courts of appeals should abandon the "law of the circuit" doctrine when confronting Board nonacquiescence. She contends the policy concerns that justify application of the "law of the circuit"-- …

Congress's Paramount Role In Setting The Scope Of Federal Jurisdiction, Michael L. Wells

Scholarly Works

Article III presents a conundrum for scholars seeking a coherent explanation of the federal courts' role in our system of government. On the one hand, the framers set up the judiciary as a separate branch with jurisdiction over federal law and other matters of federal interest. They granted federal judges life tenure and undiminishable salary in order to preserve judicial independence from executive and legislative pressure. It is evident from these provisions that the framers saw a need for a strong national judiciary. At the same time, article III explicitly leaves to Congress the decision whether to create any lower …

Governmental Inaction As A Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells

Scholarly Works

DeShaney v. Winnebago County Department of Social Services is the Supreme Court's first major effort to define the scope of state and local governments' affirmative obligations under the fourteenth amendment. The Court rejected liability against a county welfare agency and a caseworker for failing to prevent a father from severely beating his four-year-old son. The Court intimated that constitutional affirmative duties exist only where the plaintiff is in the state's custody. Scholarly commentary reads the case as announcing a sweeping prohibition against the imposition of affirmative duties in other contexts. Professors Eaton and Wells demonstrate that the DeShaney opinion is …

Against An Elite Federal Judiciary: Comments On The Report Of The Federal Courts Study Committee, Michael L. Wells

Scholarly Works

No doubt some reform of the federal courts is essential if they are to cope with the proliferation of litigation over the past thirty years and the resulting "congestion, delay, expense, and expansion" in the federal courts. While the problem may not amount to an "impending crisis", the burgeoning caseload surely poses a threat, at least in the long run, to the ability of the federal courts to function effectively. The hard question is not whether something should be done, but what to do about it. There is no shortage of interesting ideas. Some of the ideas that clamor for …

The Vices Of Originality, Paul J. Heald

Scholarly Works

Lately, the Constitution has become an unwelcome guest at the parties of those claiming rights lying on the periphery of intellectual property. Two terms ago, in Bonito Boats, Inc. v. Thunder Craft Boats Inc., the Court held that federal patent law preempted a Florida statute forbidding the reproduction of boat hulls by use of any direct molding process. The Court's decision effectively provided a limited constitutional right to copy unpatented product shapes and designs. Most recently, in Feist Publications, Inc. v. Rural Telephone Service, Inc. the Intellectual Property Clause was held to create positive restraints on Congress's ability to …

Protecting The Marine Environment From Vessel Source Pollution: Unclos Iii And Beyond, Daniel M. Bodansky

Scholarly Works

The vessel-source pollution provisions of UNCLOS III have become the reference point for virtually all discussions of marine environmental jurisdiction and, although the Convention is not yet in force, have arguably become norms of customary international law. Moreover, these environmental provisions are likely to come under increased scrutiny and assume even greater importance should the disputes over the seabed mining provisions of the Convention be resolved. Thus far, these disputes have stood in the way of ratification by many advanced industrialized countries, including the United States. The U.S. Congress recently rejected several international conventions dealing with oil spills on the …

The Canons Of Construction In Georgia: "Anachronisms" In Action, R. Perry Sentell Jr.

Scholarly Works

Two initial observations may be tendered concerning the canons of interpretations: The literature, almost uniformly, discredits them; the courts, almost uniformly, employ them. The purpose of this effort is to reflect some sense of background, and illustratively to marshal the Georgia experiences with what are perhaps the three most famous canons of interpretation.