Law Commons^™

Governmental Liability Under Cercla, Steven A.G. Davison

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No abstract provided.

Holocaust Denial And The First Amendment: The Quest For Truth In A Free Society, Kenneth Lasson

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From the ashes of the Holocaust we have come once again to learn the terrible truth, that the power of Evil cannot be underestimated. Nor can the effect of the spoken and written word. It has been but a half-century since the liberation of Nazi death camps, a little more than a decade since the First International Conference on the Holocaust and Human Rights, and a few short years since the United States Holocaust Memorial Museum first put on display its documentation of horror. Yet today that form of historical revisionism popularly called "Holocaust denial" abounds worldwide in all its …

An Interdisciplinary Approach To Family Law Jurisprudence: Application Of An Ecological And Therapeutic Perspective, Barbara A. Babb

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Traditionally, the legal system has attempted to fashion morality in determining family legal issues rather than to devise legal remedies that accommodate how families live. This approach must change, and a new approach based on legal realism that effectuates the well-being of families and children must be developed. This article proposes an interdisciplinary approach based on an ecological and therapeutic jurisprudential paradigm to resolve family legal proceedings. An ecological approach, emanating from the ecology of human development social science paradigm, is one in which family law decision-makers consider factors beyond their conceptions of the family. This approach urges decision-makers to …

Dashing Consumer Hopes: Strict Products Liability And The Demise Of The Consumer Expectations Test, Rebecca Korzec

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The threshold issue in American products liability litigation is whether the product was defective at the time it left the manufacturer's control. Traditionally, courts and scholars define “defect” in three functional categories: manufacturing defects, design defects and marketing defects. American products liability doctrine employs two major tests to determine whether a "defect” exists: the seller-oriented risk-utility test and the buyer-oriented consumer expectations test. The Draft of the Restatement Third of Torts: Products Liability, like some American jurisdictions, rejects the “consumer expectations” test as an independent standard in defective warning and design cases. Ironically, this limitation of the use of the …

A Feminist View Of American Elder Law, Rebecca Korzec

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ANY discussion of contemporary American elder law must consider gender issues. A number of gender concerns are readily discernible, including workplace and family issues. Significantly, sex-based disparities are increasing within the elderly population. In turn, these disparities exacerbate problems of fairness and equity in meeting intergenerational family needs and expectations.

As with childrearing, in contemporary American society, the major caregiving responsibility for the growing number of frail elderly falls largely on women rather than men. With an increasing number of women working outside the family home, the intersection of work and family issues is receiving considerable attention both in academic …

From Surrogates To Stories: The Evolution Of Federal Merger Policy, Robert H. Lande, James Langenfeld

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This article traces the evolution of federal merger policy. It documents how merger enforcement originally was largely based upon very strong structural presumptions. These presumptions gradually eroded and other factors became more and more important in enforcement decisions. Today meger enforcement essentially consists of structural safe harbors and a full rule of reason analysis for any merger not within these safe harbors.

Equality Revisited, Christopher J. Peters

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In legal, political, and philosophical discourse, and indeed in everyday life, equality often plays the role of a normatively significant prescriptive principle, a principle that provides reasons for action. Professor Peters, however, joins Peter Westen and others who argue that the traditional statement of prescriptive equality-equals are entitled to equal treatment--is normatively empty because it is a tautology. Like Professor Westen, Professor Peters notes that this traditional principle translates into a statement of simple redundancy: people entitled to equal treatment are entitled to equal treatment. Unlike Professor Westen, however, Professor Peters discerns a nontautological principle of equality, which claims that …

Pollard And Priorities, Kenneth Lasson

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No abstract provided.

Adjudication As Representation, Christopher J. Peters

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This Article sets forth an interpretive theory of adjudicative lawmaking according to which, under certain conditions, such lawmaking ensures constructive participation through interest representation and thus is not inherently nondemocratic. The author contends that the idea of ‘judicial activism,‘ courts deciding issues better left to political processes or substituting the personal ‘values‘ of judges for law, is based on the incorrect assumptions that courts are unconstrained and nonrepresentative. Instead, when adjudication operates in an archetypal way, it produces law in a manner similar to the parliamentary legislation process. Courts making law are constrained by the process of participatory decisionmaking--the production …

Ideas Of The Marketplace: A Guide To The 1996 Telecommunications Act,, Michael I. Meyerson

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The Telecommunications Act of 1996 represented an enormous experimental step towards deregulating the telecommunications marketplace while opening it up to competition. With an eye towards breaking up the telecommunications monopolies held by local telephone service providers, the Act created regulations that forced local carriers to share their market and their resources with other telecommunications providers. The Telecommunications Act of 1996 itself is extremely complex. This article is a "guided tour" through the major provisions of the Act.

The first step in understanding the Telecommunications Act of 1996 is to understand how the telecommunications industry operates. Part two of this article …

Long Overdue, Kenneth Lasson

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No abstract provided.

Why Are U.S. Lawyers Not Learning From Comparative Law?, Ernst C. Stiefel, James Maxeiner

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Address the problem of comparative law in the United States. Explains why comparative law matters. Gives reasons why U.S. lawyers are not learning from comparative law. These include lack of skills, lack of institutional supports, and legal structures that resist comparative law and an attitude that comparative law has little to teach.

Consumer Sovereignty: A Unified Theory Of Antitrust And Consumer Protection Law, Neil W. Averitt, Robert H. Lande

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This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two component parts of an overarching unity: effective consumer choice (also called consumer sovereignty).

Consumer choice only is effective when two fundamental conditions are present. There must be a range of consumer options made possible through competition, and consumers must be able to choose effectively among these options. The antitrust laws are intended to …

Will The Punishment Fit The Victims? The Case For Pre-Trial Disclosure, And The Uncharted Future Of Victim Impact Information In Capital Jury Sentencing, José F. Anderson

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The United States Supreme Court decision in Payne v. Tennessee, upholding the use of victim impact statements in capital jury sentencing proceedings, marked one of the most dramatic reversals of a precedent in the history of United States constitutional jurisprudence. The decision in Payne expressly overruled Booth v. Maryland decided only four years earlier. The Booth case rejected the use of victim impact statements in capital sentencing cases that involved juries. In Payne, the Supreme Court made it clear that victims were entitled to offer, and juries were permitted to consider, the effect that a "death eligible" homicide had on …

Thurgood Marshall: Legal Strategist For The Civil Rights Movement, F. Michael Higginbotham, José F. Anderson

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This brief article covers the career of attorney and U.S. Supreme Court Justice Thurgood Marshall, covering his early days as an attorney working for the NAACP, up to his career on the nation's highest court. Of particular interest are the hardships of his early days as a lawyer, as one of only 32 African American lawyers in Maryland in 1935. The key cases during his career are touched upon, along with the legal strategies used to further the cause of civil rights.

Synergy And Friction – Cra, Bhcs, Sba And Community Development Lending, Cassandra Jones Havard

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The era of federal funding retrenchment makes acute the need for community businesses to have access to capital. The Small Business Administration (SBA) provides small businesses with access to low-cost loans funds. The existing SBA regulatory scheme fosters an approach which allows a private mechanism, lenders, to make public policy decisions about the socio-economic character of communities. Implicit in the Community Reinvestment Act (CRA) and its recent reforms are a recognition of the complex interdependence among policy objectives. The reform statute specifically recognizes that geographical disinvestment has an equally deleterious effect on small business lending as it does on residential …

Reconciling The Dormant Conflict: Crafting A Banking Exception To The Fraudulent Conveyance Provision Of The Bankruptcy Code For Bank Holding Company Asset Transfers, Cassandra Jones Havard

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Banking law and bankruptcy law clash. This is most evident when a bank holding company (parent company) becomes insolvent after it has made an asset transfer to its financially troubled bank subsidiary.

The Bankruptcy Code (Code) governs the insolvency proceedings of the bank holding company. Predictably, the parent company's trustee, appointed for the protection of all the creditors of the bankrupt entity, uses the fraudulent conveyance provision of the Code to have any asset transfers that were made to the bank subsidiary returned to the debtor's estate. The good faith exception to that provision will protect the asset transfer only …

International Relations And International Law, Mortimer N.S. Sellers

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No abstract provided.

Republicanism, Liberalism, And The Law, Mortimer N.S. Sellers

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No abstract provided.

Protecting Intellectual Property Rights Through Civil Litigation: A Symposium, Eric Easton

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On September 30, 1996, nineteen lawyers, law professors and judges from the People's Republic of China began a six-week program of classroom study, practical experience, and scholarly exchange that focused on the American system of protecting intellectual property rights through civil litigation. The program was funded by a $107,000 grant from the United States Information Agency's Office of Citizen Exchange Programs to the University of Baltimore's Center for International and Comparative Law, in cooperation with the Maryland Department of Business and Economic Development.

The initial, two-week phase of the program included field trips to the U.S. Copyright Office, the Patent …

Two Wrongs Mock A Right: Overcoming The Cohen Maledicta That Bar First Amendment Protection For Newsgathering, Eric Easton

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In Cohen v. Cowles Media Co., Justice Byron R. White wrote that the First Amendment offers no protection from the enforcement of "generally applicable laws" against newsgatherers and that First Amendment protection applies only to information that has been "lawfully acquired." This Article shows that these doctrines are not only false, but have already done serious damage to First Amendment interests. It surveys lower court decisions from around the country to demonstrate the doctrines' pernicious influence, then it evaluates alternative solutions to the problem. The article concludes that the most effective, if least likely, solution would be a rule that …

Working On The "Mommy-Track": Motherhood And Women Lawyers, Rebecca Korzec

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This Article examines the effects of motherhood on the careers of women lawyers and the efficacy of the 'mommy-track' as a means of ameliorating these effects. Part I examines the current position of women in the legal profession. Part II examines the nature of 'motherhood' and the risk/benefit function of 'mommy-tracking.' Part III analyzes the 'mommy-track' from the perspective of feminist jurisprudence. Finally, Part IV examines issues related to workplace transformation. It is the position of this paper that 'mommy-tracking' reinforces undesirable stereotypes. Ironically, this apparent 'solution' actually forestalls the transformations, at home and at work, which could enable women …

Consumer Choice: The Practical Reason For Both Antitrust And Consumer Protection Law, Neil W. Averitt, Robert H. Lande

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This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two components of a single overarching unity. That overarching unity is consumer choice. Antitrust and consumer protection law share a common purpose in that both are intended to facilitate the exercise of consumer sovereignty or effective consumer choice. Such consumer choice exists when two fundamental conditions are present: (l) there must be a range …

Creating Competition Policy For Transition Economies: Introduction, Robert H. Lande

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This is an introduction to a symposium on Creating Competition for Transition Economies. This article provides an overview of the topic, and also briefly introduces the authors of the articles in the symposium; William Kovacic, Eleanor Fox, Spencer Weber Waller, Malcolm Coate, and Armando Rodriguez.

International Economic Organization, Mortimer N.S. Sellers

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No abstract provided.