Law Commons^™

Sounds Of Silence On The Civil Jury, Laura Dooley

Scholarly Works

Juries are hallowed institutions in our constitutional system. They are mentioned not once, but three times in the Bill of Rights, and had been earlier enshrined in Article III. At the heart of our exalted vision of the jury trial is the sense that juries should be reflective of the community which they are supposed to represent in the courtroom. Of course, many members of the relevant community have routinely been excluded from jury service, including women who comprise more than half of the population. Historically, the exclusion of women from civil jury service was a systematic and system-wide practice. …

Immunity From Regulatory Price Squeeze Claims: From Keogh, Parker, And Noerr To Town Of Concord And Beyond, Keith A. Rowley

Scholarly Works

On September 21, 1990, the First Circuit handed down its decision in Town of Concord, Massachusetts v. Boston Edison Co. This case, the most recent in a growing line of court of appeals decisions examining the antitrust implications of public utility rate structures, represents the first time a United States court of appeals has unequivocally stated that an antitrust action based upon a “price squeeze” could not be maintained against a utility whose wholesale and retail rates were both fully regulated. Town of Concord notwithstanding, the courts are far from agreeing whether investor-owned electric or natural gas utilities are immune …

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role Of Human Rights, And Issues Of Extraterritoriality Under International Criminal Law, Christopher L. Blakesley

Scholarly Works

This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis.

The authors first analyze the five …

International Year In Review: Developments In International Criminal Law, Christopher L. Blakesley

Scholarly Works

In this piece Professor Blakesley provides remarks on recent developments in International Criminal Law.

International Law Principles Governing The Extraterritorial Application Of Criminal Law, Christopher L. Blakesley

Scholarly Works

In this piece Professor Blakesley provides remarks on the differences and similarities between Germany and the United States on international principles of jurisdiction over extraterritorial crime.

Comparative Law: Its Purposes And Possibilities, Christopher L. Blakesley

Scholarly Works

Comparative law is much more than “matching laws.” Professor Grossfield’s short, lively book will certainly awaken its German reader to the value, indeed necessity, of comparative law and comparative insights in his or her own practice or scholarly work. This, he aims at the skeptic who may think of comparative law or foreign legal systems as arcane and useless fluff, too luxurious for the hard working “practical-minded” practitioner. Professor Grossfield throws the cold water of realization into this skeptic’s face. The message being that considering comparative approaches and theory about similar problems may indeed be as practical as one can …

Introduction To Greek Law, Christopher L. Blakesley

Scholarly Works

Greek Law, developed under the stewardship of Professor Konstantinos Kerameus, takes on his character, being a solid, careful work of first rate scholarship. It presents the Greek legal system, the substance of each part of its civil public and penal law and procedure, in a series of well-written and insightful chapters by many of the best Greek scholars (in the United States and in Greece) on each subject. The book is important, because Greece is in the Common Market and Council of Europe, and because the continental and even the common law systems owe their development to the Ro- man-Byzantine …

A Better Approach To Arbitrability, Jeffrey W. Stempel

Scholarly Works

Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Scholarly Works

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …

Choosing The Insidious Path: West Virginia University Hospitals, Inc. V. Casey And The Importance Of Experts In Civil Rights Litigation, Eileen R. Kaufman

Scholarly Works

No abstract provided.

A Comparison Of A Mentally Ill Individual's Right To Refuse Medication Under The United States And The New York State Constitutions, William M. Brooks

Scholarly Works

No abstract provided.

Affirmative Action, Douglas D. Scherer

Scholarly Works

No abstract provided.

Authoritarianism And The Rule Of Law, Lynne Henderson

Scholarly Works

No abstract provided.

Teaching Students How To "Think Like Lawyers": Integrating Socratic Method With The Writing Process, Mary Beth Beazley, Mary Kate Kearney

Scholarly Works

Professor Beazley begins this article with an overview of how Socratic method and the writing process have traditionally been used and how they can be integrated in the legal writing course. The remainder of the article is devoted to an analysis of how this integration can be achieved in a five-step structured dialogue. She and her co-author identified these five steps as: (1) the assignment, or "instigating question"; (2) the student's written answer, in a series of "focused drafts" with "private memos"; (3) the teacher's written response, using Socratic questions whenever possible; (4) the conference, where the teacher can use …

Environmental Law (Symposium: The Supreme Court And Local Government Law: The 1989-90 Term), Leon D. Lazer

Scholarly Works

No abstract provided.

Transfers Prior To Marriage And The Uniform Probate Code's Redesigned Elective Share - Why The Partnership Is Not Yet Complete, Rena C. Seplowitz

Scholarly Works

No abstract provided.

Right-To-Die, Bruce N. Morton

Scholarly Works

No abstract provided.

Equal Protection And The Procedural Bar Doctrine In Federal Habeas Corpus, Laura Dooley

Scholarly Works

Winford L. Stokes, Jr. and Theodore C. Harris had much in common. Both were death-row inmates in the late 1980s. Both were convicted of murder following bifurcated jury trials in which they later alleged that they had not received effective assistance of counsel as required by the federal Constitution. Both inmates sought collateral review of their convictions in federal courts. The similarities between them end there. Because Stokes had procedurally defaulted on his federal constitutional claim in state court under the law of Missouri, the federal appeals court refused to consider the merits of his federal constitutional claim.' Harris, on …

Time For Every Purpose Under The Heaven: Service – The National Bar Association Model, Beverly Mcqueary Smith

Scholarly Works

No abstract provided.

Section 1983, Martin A. Schwartz, George Pratt, Leon Friedman

Scholarly Works

No abstract provided.

Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Marjorie A. Silver

Scholarly Works

Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that the first amendment values support a judicial …

The Pension Game: Age- And Gender-Based Inequities In The Retirement System, Camilla E. Watson

Scholarly Works

This Article begins by stressing the importance of retirement benefits in general and employer-provided benefits in particular. It then addresses specific current issues of age and gender discrimination under both the private retirement and Social Security systems. Gender-based discrimination is emphasized because of the overlap between gender-based discrimination and age discrimination. Finally, this Article suggests specific reforms for a fairer and more adequate systems in the twenty-first century.

Sex, Lies And Jurisprudence: Robert Bork, Griswold, And The Philosophy Of Original Understanding, Glenn Harlan Reynolds

Scholarly Works

This article analyzes Robert Bork's philosophy of original understanding jurisprudence in the context of the Supreme Court's decision in Griswold v. Connecticut, and concludes that Bork's theory does not perform as advertised and in fact -- contrary to Bork's representations -- actually supports the outcome reached by the Supreme Court in the Griswold case. It nonetheless concludes that original understanding interpretation has something to offer, if not as much as Bork claims.

Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson

Scholarly Works

It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …

Preliminary Reflections On Mckesson And American Trucking Associations, Walter Hellerstein

Scholarly Works

On June 4, 1990, the Supreme Court issued its long awaited decisions in McKesson Corp v. Division of Alcoholic Beverages and Tobacco and American Trucking Associations, Inc. v. Smith. Both cases raised the question of whether a taxpayer has a right to a refund of unconstitutional state taxes. This article analyzes these decisions separately and considers the implications of these decisions on future state tax litigation. The article has two purposes: first, to analyze the McKesson and American Trucking Association cases; and second, to consider their implications for future constitutional challenges to state taxes. The article concludes by stating …

Human Gene Therapy And The Law: An Introduction To The Literature, Edward J. Larson

Scholarly Works

This essay will review introductory selections on the law of human gene therapy in the context of four common starting points: the discovery of DNA structure, past efforts to regulate genetic engineering, America's experience with eugenics, and historical, constitutional, or cultural values.

Roundtable: The United States Constitution And The Adoption Of International Human Rights Instruments: Freeing The Political Logjam: Keynote Address: Proposals For The Future, Louis B. Sohn

Scholarly Works

As it has already been mentioned today, we are living in a rather exciting time as far as human rights are concerned. Since 1917, we have lived under both the shadow of the Soviet Revolution and the threat of Communism becoming the great idea of the future. We know now that this did not come to pass, and that communism has proved to be unable to assert is superiority over other existing political systems. A chance and opportunity now exists for the United States to show that it can do better, that its goal is not to take over the …

The Federal Transfer Tax Consequences Of Joint And Mutual Wills, Amy Morris Hess

Scholarly Works

No abstract provided.

Review Of Christopher F. Mooney, Public Virtue: Law And The Social Character Of Religion (1986), Leslie C. Griffin

Scholarly Works

No abstract provided.

Response, [To Kathryn Abrams, Hiring Woman], Thomas B. Mcaffee

Scholarly Works

This article is a response to an article by Professor Kathryn Abram about the recruitment and hiring of women law professors. Professor McAffee confronts an issue that Professor Abrams does not—that of giving women a “preference” in hiring. Professor McAffee also adds to Professor Abrams’ reflections about the question of how law schools should go about hiring more women.