Law Commons^™

Taking Stock Of Detainer Statutes, Larry Yackle

Faculty Scholarship

A detainer is a warrant or hold-order placed on a person already in custody to insure that the prisoner, upon completion of the term he is serving, will be available to the authority which filed the detainer. While penal and correctional methods and philosophies have moved far along the road of progress, this system has persistently and imperturbably plagued penal administrators, courts, and institutional personnel. Unnumbered times a detainer has proved the stumbling block to a law violator on his way to recovery.

Medical Malpractice Litigation Under National Health Insurance: Essential Or Expendable, George J. Annas

Faculty Scholarship

"Medical malpractice" denotes the basis for a civil action brought by a patient against a physician for injuries resulting from negligence. The current method for compensating victims of these occurrences is primarily a fault-and-liability insurance system. The first principle of tort liability is that the party at fault pays for the damage inflicted upon an innocent victim. Whether a doctor is at fault is determined in an adversary proceeding, with both the doctor and the patient represented by counsel. The triers of fact have the task of ascertaining whether the defendant was at fault, and if so, what compensation he …

The Burger Court, 'State Action', And Congressional Enforcement Of The Civil War Amendments, Larry Yackle

Faculty Scholarship

There is an uncertainty abroad in the land. At its root, to speak boldly, lies the fear that the fate of individual liberty in this Nation is in the hands of a Supreme Court whose newest members, cast in the intellectual likeness of a disgraced Executive, lack sufficient sensitivity to libertarian ideals to preserve the American democracy as we know it. Particularly for those who found in the Warren Court the moral leadership necessary to move the country toward a just resolution of the perplexing social problems that plague us all, the skies seem dark. Our constitutional system has always …

Law And Medicine: Myths And Realities In The Medical School Classroom, George J. Annas

Faculty Scholarship

The goal of legal education in a nutshell is to get the student to "think like a lawyer." The goal of medicolegal courses in medical schools, on the other hand, has often seemed to be to get the medical student to think bad things about lawyers. While the total solution to the legendary distrust between these two professions may not be an understanding of methodology, this article will suggest that one way to increase cooperation between the professions is to teach law in medical schools in a way that emphasizes methods of approaching problems and which seeks to dispel the …

"Fitness" For Birth And Reproduction: Legal Implications Of Genetic Screening, George J. Annas

Faculty Scholarship

The introduction of accurate methods to screen for genetic defects in the adult, the newborn, and the fetus promises to increase man's control over his own destiny. If that promise is to be realized, however, careful planning will be needed to prevent the technology of screening from imposing its own ethic on man. The invention of the club enabled man to increase his ability to hunt for food, and simultaneously to brutalize his fellow man. In the same way, while advances in genetic screening could lead to an increase in self autonomy for a few, they may also encourage the …

Thoughts On Rodriguez: Mr. Justice Powell And The Demise Of Equal Protection Analysis In The Supreme Court, Larry Yackle

Faculty Scholarship

Since the fall of 1969 when Warren Earl Burger took his seat as Chief Justice, the academic community has placed the Supreme Court under a thorough and searching examination. Coming on the heels of enormous and far-reaching activity in the judicial branch, the Burger Court has been called to account for both its adherence to and its rejection of the Warren Court's innovations in constitutional adjudication. The purpose of this article is to continue that constructive criticism by taking stock, after five years, of the Court's performance in one significant class of cases-those interpreting the equal protection clause of the …

The Division Of Legal Labor In Rural Haiti, Pnina Lahav

Faculty Scholarship

This paper explores the institutional facilities available to Haitian peasants for the settlement of their disputes. More specifically, it compares the institution of the Chef de Section - the lowest administrative appointee in the Haitian countryside and the Justice of the Peace - the lowest ranking judicial institution provided by the Haitian legal system. The paper further advances the hypothesis that at the present time there is a shift in the division of labor between the two institutions, in favor of the Justice of the Peace, and that this shift may be attributed to processes of social differentiation currently detectable …

Some Regulatory Implications Of Technology Assessment, Michael S. Baram

Faculty Scholarship

To conclude this wide-ranging panel discussion, I want to briefly address two aspects of regulation which have been troublesome, and for which Technology Assessment may be particularly useful.

The first aspect, which relates to radiation and other hazardous substances in general, is the increasingly important regulatory function of forcing the development and application of appropriate control technologies on industry-normally, the development and application of devices and techniques to protect public and worker health and safety. The question becomes: Is the regulatory program appropriately forcing and guiding necessary advances in control techniques and their timely use?

The Victim's Role In Criminal Prosecutions In Ethiopia, Stanley Z. Fisher

Faculty Scholarship

The purpose of this paper is to review developments which have occurred in the victim’s role in criminal prosecutions under Ethiopian law. In contrast to the penal laws of modern Western states, which define a wide range of wrongful conduct as offensive to the state itself, the traditional Ethiopian law of wrongs viewed relatively few offenses thus. For the most part, the state confined itself to legitimating and assisting the victim’s own efforts to obtain redress.

The Nature Of The Contract Argument, David B. Lyons

Faculty Scholarship

As truth is the first virtue of belief, so justice is of social institutions. That is John Rawls's view, and it seems true, at any rate, of the law. Official acts, laws, and legal arrangements generally are characterized as just or unjust, while other moral categories are much less frequently invoked. Justice seems inseparable from good law. It is therefore striking and important that justice has recently been regarded by prominent legal theorists as rationally disreputable--as, in Kelsen's words, "an irrational idea." Many divergent conceptions of social justice have been propounded, and it is held that there is no rational …

Implications Of Minority Interest And Stock Restrictions In Valuing Closely-Held Shares, Alan L. Feld

Faculty Scholarship

The federal estate and gift taxes levy on the gratuitous transfer of wealth by both testamentary and lifetime disposition. The amount of the tax depends on the value placed on the property transferred by the decedent or donor. When the property transferred consists of shares of stock in a closely held corporation, there often exists no ready market to help in valuation. As a result, the value of the shares used to compute the federal estate or gift tax must be determined first by appraising the value of the enterprise, and then by allocating some portion of that value to …

Psychosurgery: The Law's Response, George J. Annas

Faculty Scholarship

Participants in the psychosurgery controversy generally espouse one of three competing points of view. First, there are the surgeons who argue that psychosurgical procedures have developed beyond the experimental stage to the point where they may be considered therapeutic for certain types of patients. Second, there are those who support further research in the area in the hope of developing genuinely therapeutic procedures, but who recognize the importance of safeguarding against potential abuses in the course of this development. Finally, there are the anti-psychosurgeons, who argue for the total prohibition of psychosurgery on ethical, spiritual, or political grounds independent of …

Private Use Of Public Facilities: A Comment On Gilmore V. City Of Montgomery, Larry Yackle

Faculty Scholarship

Perhaps the principal shortcoming of constitutional adjudication in the Supreme Court of the United States is the Court's recurrent failure to set forth principles of decision that rise above the result reached in any particular case.' The other branches of the national government, the states, the bar, and ultimately the public at large require guidance concerning the pressing constitutional issues of the day. That guidance can come only from the Supreme Court, for, to be sure, "[i]t is emphatically the province and duty of the judicial department to say what the law is."2 To the extent the Court shrinks from …

The Status Of Women In Israel - Myth And Reality, Pnina Lahav

Faculty Scholarship

The issue of women's rights has been subjected to reexamination and redefinition in recent years. The legal structure relevant to this issue, so clearly intertwined with traditional values and historical prejudices, is increasingly studied in an attempt to find ways to achieve equality of the sexes in our lifetime. In this context, cross-cultural study of diverse societies and legal systems can make a vital contribution. A step forward in this direction was taken in the fall 1972 issue of this journal, in a symposium on the status of women. Among others, the Israeli legal system was discussed by Plea Albeck, …

The Patient Rights Advocate: Redefinig The Doctor-Patient Relationship In The Hospital Context, George J. Annas

Faculty Scholarship

As Western man approaches the last quarter of the twentieth century, he is developing the power to control the forces of nature. Few areas of human behavior have not been affected by new technologies. In health care, progress has been dramatic in such areas as the determination of prenatal genetic defects through amniocentesis, asexual reproduction through artificial insemination, the use of an artificial placenta, cloning,artifical modification of man-especially through transplantation, ' modification of human behavior through psychosurgery and chemotherapy,' and the mechanical postponement of death. No aspect of health care has escaped the impact of technology.

Environmental Law And Construction Project Management, Michael S. Baram

Faculty Scholarship

Construction project management generally proceeds through sequential stages of project conception, planning, site acquisition, design and construction. Traditionally, citizens and public officials have relied on various elements of American common law to prevent, abate or get compensation for injuries resulting from the final construction stage of project management. Common law concepts of nuisance, negligence and trespass have been applied by the courts to situations where essentially private rights have been infringed by debris, runoff, noise, vibrations, structural damage and other byproducts of the construction process. The common law has therefore indirectly served as an environmental control on construction activities in …

Another Word On Child Care, Alan L. Feld

Faculty Scholarship

Professors Schaffer and Berman have written a stimulating brief in support of a deduction for child care expenses in computing federal taxable income. But, in addition, by the range of considerations which their article takes into account, it illustrates the difficulty in opting for deductibility or nondeductibility on the basis of a rational consideration of income tax policies. The difficulty derives primarily from the fact that child care expenditures partake of both a personal (consumption) element and a business (income earning) element.¹ To the extent it represents the latter, it does not represent personal income appropriately subject to tax; …

On Formal Justice, David B. Lyons

Faculty Scholarship

A number of legal and political theorists have suggested that public officials who fail to act within the law that they administer act unjustly. This does not mean that injustice is always likely to be done merely because it often happens to be done when officials depart from the law. Some writers have held that injustice is done whenever an official fails to act within the law, regardless of the circumstances. I shall call this type of view "formal justice."

Regulation Of Variable Life Insurance, Tamar Frankel

Faculty Scholarship

On November 29, 1971 the American Life Convention and Life Insurance Association of America filed a petition with the Securities and Exchange Commission (SEC) to exempt certain variable life insurance policies and separate accounts funding them from the provisions of the federal securities acts.¹ The petition had been preceded by informal negotiations by the insurance industry for a decision by the SEC "not to assert jurisdiction" over such policies and accounts.² The Commission's staff declined to recommend primarily because the staff felt that other interested parties ought to be heard before a determination was made which might adversely …

Technology Assessment And Social Control, Michael S. Baram

Faculty Scholarship

The emerging concepts of corporate responsibility and technology assessment are, to a considerable extent, responses to problems arising from technological developments and their applications by industry and government. These problems appear in the relatively discrete sectors of consumer protection and occupational safety and in the diffuse sectors of community quality of life and the national and international environments.

Collateral Challenges To Criminal Convictions, Larry Yackle

Faculty Scholarship

The Kansas Defender Project is a clinical program sponsored by the University of Kansas School of Law. The Project provides student legal services to indigent prison inmates at the United States Penitentiary at Leavenworth and the Kansas State Penitentiary at Lansing, Kansas. Launched in 1965 through the efforts of Paul E. Wilson, Kane Professor of Law, the Project has since been a model for similar clinical undertakings at law schools across the country.

Deductibility Of Expenses For Child Care And Household Services: New Section 214, Alan L. Feld

Faculty Scholarship

It is increasingly common to find families composed of husband, wife and young children, where both husband and wife are gainfully employed. For some, this pattern is regarded as preferable to the older "ideal" family, where the husband was the sole breadwinner and the wife cared for the children, performed household chores and perhaps engaged in social or charitable activities. Where both spouses are gainfully employed, it is often necessary for the family to employ household help to care for the children and do the housework. These expenditures are "necessary" to the gainful employment of both spouses in the sense …

Logic And Coercion In Bentham's Theory Of Law, David B. Lyons

Faculty Scholarship

Unlike conventional moral standards and other social rules, laws can be deliberately laid down and changed by specified procedures. It therefore seems reasonable to think of laws as issuing from or adopted by lawmakers who are ordinary human beings. Since laws tell us what must or must not be done, and since there is some temptation to understand all laws on the same pattern, it is natural to think of them as either commands or prohibitions. This is indeed a traditional view.

Medical Remedies And Human Rights: Why Civil Rights Lawyers Must Become Involved In Medical Decision-Making, George J. Annas

Faculty Scholarship

As recently as the turn of the century a random patient meeting a random physician had less than a 50:50 chance of benefiting from the encounter. Physicians were just beginning to emerge from the era when they were essentially tradesmen, often with little more to offer their patients than comfort and company during illness and death. The principal causes of mortality were the infectious diseases against which the medical community stood impotent. There were few medical schools, few diagnostic tests, no specific treatment of disease, and no specialization of physicians. In the words of former AMA president Dwight L. Wilbur, …

The Legal And Regulatory Framework For Thermal Discharge From Nuclear Power Plants, Michael S. Baram

Faculty Scholarship

As the rate of electricity generation increases, and as more nuclear power plants-in contrast to fossil fuel and hydro-electric facilities-are built to meet power needs, the use of cooling water and its subsequent discharge in heated states into the environment is expected to rise to massive levels. Estimates of future cooling water use vary and are subject to technical and economic developments, but by 1990, between 640 and 850 billion gallons per day are expected to be required. This range of water use can be roughly equated to one-half to three fourths of the average daily run-off of fresh water …

The Indigent's Right To A Transcript Of Record, Larry Yackle

Faculty Scholarship

There is no more fascinating subject in the field of federal constitutional law than the relationship between due process and equal protection, concepts brought together in the fourteenth amendment. Governmental action that is fundamentally unfair and a denial of due process may also involve discriminatory treatment and a denial of equal protection.' Accordingly, in a number of cases the distinction between the two concepts has been blurred. In Douglas v. California, the Supreme Court held that on first appeal counsel must be furnished to indigents at state expense because the failure to provide professional representation is both fundamentally unfair and …

Traditional Criminal Procedure In Ethiopia, Stanley Z. Fisher

Faculty Scholarship

In the decade 1955-1965 the Ethiopian government completely revolutionized its legal system by promulgating comprehensive legal codes and a new constitution. These laws have a predominantly Western flavor, and seem to bear little relation to the traditional patterns of life which still prevail in the Empire-one of the least "developed" areas of Africa. This state of affairs has led some to characterize the new codes as "fantasy law," which may serve to put a modern "face" on the country but, at least for some time to come, will not have any serious impact on the conduct of its affairs.

Variable Annuities, Variable Insurance And Separate Accounts, Tamar Frankel

Faculty Scholarship

The variable annuity is a novel retirement plan. It was devised to minimize the inadequacies of a fixed-dollar annuity as a retirement device. Inflation and an accelerating standard of living have left persons receiving fixed-dollar annuities with only a fraction of the income required to meet their needs.

Extemporaneous Comment, Michael S. Baram

Faculty Scholarship

Well, I think today we have heard two ideas which are intuitive to the emerging role of the law school. One is Arthur Miller's idea of creating centers of policy analysis and the other is what several other speakers have suggested about interdisciplinary and clinical interdisciplinary programs. I would like to speak against the former and for the latter.

Criminal Procedure For Juvenile Offenders In Ethiopia, Stanley Z. Fisher

Faculty Scholarship

The purpose of this article is to set out, in summary fashion, the law concerning juvenile offenders in Ethiopia. Our focus will be on procedural rather than substantive aspects-insofar as it is possible to separate the two-and particularly upon the enforcement of constitutional guarantees in the process.